ITEMID: 001-76987
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF H.K. v. FINLAND
IMPORTANCE: 4
CONCLUSION: Violations of Art. 8 (care order and access restrictions);No violation of Art. 8 (other aspects);Not necessary to examine under Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 7. The applicant was born in 1968.
8. The applicant is the father of two children, K. born in 1988 and H. born in October 1990. He and the mother of the children divorced in January 1992, having lived apart since November 1990 and K. having lived with his mother and H. with the applicant. The applicant assumed the care of H. some ten days after her birth. According to an agreement reached in connection with the separation and confirmed by the Social Welfare Board, K. was to remain with the mother and H. with the applicant. The parents had joint custody of the children.
9. M. cohabited with the applicant from March to October 1994. Following their separation, she contacted the social welfare authorities, alleging that H. had been sexually abused by the applicant. The child's stories and behaviour had attracted M.'s attention and she had observed H. frequently touching her genitals and masturbating when going to sleep. M. also reported her suspicions to the family day care nurse. The applicant was not informed of the reports.
10. On 16 November 1994 during a visit to the day carer's, social welfare officials requested her to monitor H.'s behaviour, which according to her was deviant in that she masturbated before going to sleep. The officials witnessed the same during their visit. On 17 January 1995 they again visited the day carer, who now had kept records of H.'s behaviour. Based on these notes and their own observations, the officials consulted the Family Advice Centre (perheneuvola, familjerådgivningen) and decided to organise H.'s interviews and other examinations owing to a suspicion that she had been sexually abused. The applicant was not informed of those visits.
11. On 27 January 1995 when arriving to pick H. up from day care, the applicant was directed to the Family Advice Centre, where he was informed of the suspicion of sexual abuse. While denying the suspected abuse, he consented to an examination of H. but he did not accept that her place of residence should change for the period of examination.
12. The applicant was then informed that H. was to stay with her mother, who was her other legal custodian. According to the Government, he commented on H.'s placement by saying that if H. could not stay with him, the best place for her was with her mother. He was also told that if he agreed on H.'s placement with her mother, the social welfare authorities would not issue a public care order. According to the Government, he consented to H.'s placement with her mother. This was contested by the applicant.
13. On 2 February 1995 the social welfare authorities were contacted by the applicant's counsel who was told that if the applicant opposed H.'s placement with her mother during the examinations, the alternative was to issue an emergency care order. On the same day counsel withdrew the applicant's alleged consent to H.'s placement with her mother, following which a meeting with the parents was held at the Family Advice Centre on 3 February 1995.
14. It is undisputed that from 3 February 1995 there was no consent by the applicant to H.'s placement outside his home. The parties disagree as to whether the applicant consented to H.'s placement with her mother for the period 27 January and 2 February 1995.
15. By an emergency order issued on 8 February 1995 the senior social welfare official placed H. in public care with her mother, pursuant to section 18 of the Child Welfare Act (lastensuojelulaki, barnskyddslagen; Act no. 683/1983). The further consideration of the matter was referred to the Tampere Social Welfare and Health Care Board (hereinafter “the Board”; sosiaali- ja terveyslautakunta, social- och hälsovårdsnämnden), pursuant to section 17 of the said Act. The emergency care order referred to the need to conduct the necessary examinations in the Family Advice Centre in the light of the suspicion that H. had been sexually abused. The decision had not been written on the form approved by the Ministry for Social Welfare and Health Affairs in pursuance of section 14 of the Child Welfare Decree (lastensuojeluasetus, barnskyddsförordningen; Act no. 1010/1983). According to the notice of appeal incorporated into the decision, an appeal could be filed with the Board within fourteen days.
16. In its decision of 24 February 1995 the Board ordered that the emergency care should continue until 27 March 1995 for the purpose of concluding the examinations. According to the notice of appeal attached to the decision, an appeal could be addressed to the County Administrative Court within thirty days.
17. The Family Advice Centre's examinations commenced on 7 February 1995 and were completed on 24 March 1995. Two psychologists, J.K. and M.R., and a child psychiatrist, Dr A-K.R., stated in their written opinion of 24 March 1995 that it was highly likely that H. had been sexually abused by the applicant. He was informed of the results of the examination in a meeting on the same day during which J.K., H.'s mother and a friend of the applicant's were also present. The examinations resulted in a conclusion that H. should be placed in public care away from the applicant.
18. On 24 and 27 March 1995 the Board heard the parents and the paternal grandmother. The applicant again denied having abused H., whereas the paternal grandmother had not noticed anything exceptional in H.'s behaviour. Following the emergency care, she had repeatedly inquired into H.'s “unusual talking” and had come to the conclusion that it had been triggered by something which had occurred in day care. She agreed to assume the care of H. in her home, as did the mother, who further stated that she had never accepted that H. should live with the applicant and that she had tried to avoid any contact with the applicant and his family. He again did not agree that H. would be staying with her mother. On 27 March 1995 the Board confirmed the care order in accordance with section 17 (2) of the Child Welfare Act. It reasoned:
“The examination of [H.] in the Family Advice Centre has come to an end ... . The examination results confirm the impression that the child has been sexually abused and that her development would be seriously jeopardised if she continued living with her father. In its opinion the Family Advice Centre recommends that the child be placed in public care in order to ensure her healthy development (appendix no. 5).
It is not possible to exclude possible abuse by providing open-care support measures.
Placing the child in public care is a precondition for ensuring that she receives care corresponding to her stage of development.”
19. The Board referred its decision to the Häme County Administrative Court (lääninoikeus, länsrätten) and the applicant filed an appeal, to which he attached two medical opinions. The first opinion was issued by a general practitioner, Dr A.H., on 3 March 1995, who had seen H. four times at a child welfare clinic, the last occasion being in December 1993. The other opinion was given by a nurse, I.L., of the same clinic on 7 March 1995. She had seen H. last in October 1994. The opinions found nothing exceptional in the child's development and no failure on the part of the applicant in providing her with proper care. Given that H. had been staying with her mother during the period of examination, the applicant argued that it could not be excluded that the latter had influenced the child's behaviour. He reiterated that although H. had been monitored while in day care, he had not been informed of the suspicions until January 1995. He furthermore argued that he had not been heard in accordance with section 15 of the Administrative Procedure Act (hallintomenettelylaki, lagen om förvaltningsförfarande; Act no. 598/1982). When invited to the meeting on 27 January 1995, he had not been informed of its real purpose, namely the plan to take the child into public care. He had allegedly received a copy of the emergency care order of 8 February 1995 only after repeated requests and the paragraph indicating the possibility for him to have it reviewed by the Board had allegedly been crossed out.
20. On 29 June 1995 social welfare officials and H.'s mother agreed that H. would stay with her paternal grandfather and his partner for two weeks in July 1995 owing to the mother's fatigue. On 18 July 1995 H.'s maternal grandmother informed the social welfare authorities that H. had not returned home the day before. They unsuccessfully tried to contact the mother, following which on 25 July 1995 they agreed with the paternal grandfather that H. would stay with him until the mother could be reached or until the situation could be evaluated. On 17 August 1995 the mother informed the authorities that H. could not stay with her as the situation had drained her strength. She suggested that H. should stay with her paternal grandfather. The same day social welfare officials visited H.'s paternal grandfather and his partner, a family day care nurse by profession, who informed the officials that they could not take care of H. in the long term. It was agreed, however, that H. would stay with them until the County Administrative Court had reached its decision.
21. On 21 August 1995 the applicant informed the social welfare authorities that he did not approve of the public care. In an opinion of the same day a senior physician, Dr A.L., found H. to be normally developed both physically and mentally.
22. In a hearing on 31 August 1995 the County Administrative Court examined six witnesses. The psychologist M.R. testified to having met once with H., following which the examination had been continued by the psychologist J.K., who had met her on a few occasions. As the child had appeared to shy away from male interviewers, Dr A-K.R. had eventually taken over the investigation. He further testified that the child's statements to Dr A-K.R., who had recorded the interviews on audio tape, had been consistent with her earlier statements to the day carer.
23. The paternal grandmother testified that from March 1995 H. had started behaving in an explicitly sexual manner, referring to games played with another child in day care. H. had also referred to the day carer's husband, who had been tickling her. She also testified that the former girlfriend M. at the time of the separation in October 1994 had threatened to “seek revenge” on the applicant.
24. The day carer testified that H. had continued to masturbate after having been removed from the applicant's home. She denied ever having left H. alone with her husband, which was contested by the applicant.
25. The applicant requested that the court refer H. to a child psychiatrist for examination. The Board did not object to such an examination as long as it was conducted by a public institution. The applicant contended that in the autumn of 1994 he had, of his own motion, discussed his daughter's behaviour with a social welfare official in another local office, following which he had requested the day carer to observe H. particularly in this respect. The day carer denied that such a conversation had taken place.
26. The County Administrative Court granted the applicant cost-free counsel retroactively from 27 March 1995. It however rejected his request for a further medical examination of H. By its decision of 29 September 1995 it upheld the care order, reiterating the contents of M.'s report of October 1994 and the observations made by the day carer. From the summer of 1994 the day carer had seen H. frequently masturbating during naps and when playing. According to her notes, such masturbation had lasted from fifteen minutes to one and a half hours at a time. H. had also repeatedly been saying that the applicant had been tickling her in her buttocks and kissing her with his tongue.
27. The County Administrative Court's reasons for upholding the care order read in extenso as follows:
“According to the evidence available, the conditions in the home of [H.] have seriously jeopardised her health and development. Open-care support measures have not been possible. The public care of [H.] and her placement outside her original home must be considered to be in her interests.”
28. The County Administrative Court's decision was notified to the Board on 5 October 1995. The following day social welfare officials presented themselves without giving any advance notice in the paternal grandfather's and his partner's home, removed H. and temporarily placed her in a substitute family.
29. The applicant appealed against the County Administrative Court's decision, requesting a hearing before the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) and a further examination of H.
30. In a meeting on 11 October 1995 between social welfare officials and the applicant, he was informed that H. had been transferred to a substitute family, to which he objected. The mother consented to the placement.
31. On 6 November 1995 the applicant removed H. from the venue of a supervised meeting and hid her during the following eleven months. On 1 December 1995 he and H. underwent an examination by a psychologist, H.H., who in a written opinion of 22 January 1996 found H. to be more developed than an average child of her age. She was balanced, very attached to her father and there was no indication of her having been sexually abused.
32. Two days after the abduction the Board decided that the public care should be implemented in the substitute family. The Board did not accept the paternal grandfather's and his partner's offer to care for H. It noted that the applicant had been heard in person on 11 October 1995. He had been invited to attend the Board's meeting, but he sent instead a letter that was read out at the meeting.
33. On 30 November 1995 the Board filed observations in reply to the applicant's appeal to the Supreme Administrative Court. On 19 January 1996 he submitted a rejoinder.
34. On 27 February 1996 the court invited the National Authority for Medicolegal Affairs (hereinafter “the Medicolegal Authority”; terveydenhuollon oikeusturvakeskus, rättsskyddscentralen för hälsovården) to submit a written opinion on the conduct of the examinations by the Family Advice Centre, which was subsequently communicated to the applicant for comments.
35. Meanwhile, and following the applicant's complaint as to the examinations by the Family Advice Centre, the Medicolegal Authority had obtained expert opinions from its standing experts, a professor in child psychiatry, Dr E.R., and a psychologist T.P., as well as a written opinion from Dr A-K.R. and J.K. In an opinion dated 30 January 1996 Dr E.R. noted inter alia the following:
“The examinations carried out on H. were initiated on account of 'the sexual games' with the father, of which the child had spoken to the day care nurse, and on account of H.'s frequent masturbation in day care, especially before taking a nap. Although masturbation is relatively usual at that age, it can no longer be considered to merely relate to the age of the child when it is so extensive and intense as described by the day care nurse, especially not where the masturbation is placed in the context of the child's description of 'sexual games' at home. In this light I find the initiation of the examinations concerning sexual abuse a justified measure. .... [Dr A - K.R's] questions [that were put to H.] were not leading although they tended to have an element of pressure given that they were repeated several times as the girl was unable to answer them. ... Whether the girl has undergone psychological tests, either projective tests or tests measuring the child's abilities, remains unclear. Also the contents of [H.'s] playing remain unclear. Thus, I cannot assess the quality of psychologist [J.K.'s] examinations. Pyschologist [M.R.] has met both parents, but the documents I have received do not disclose any detailed description of the contents of the discussions, thus preventing me from assessing also the quality of these discussions. With the exception of the interview carried out by child psychiatrist [A-K.R.], which I find appropriate, I cannot take a position on the nature of the examinations. ...The decision to take the child into public care was made in an appropriate manner by the social welfare authorities, considering that the father had proved to be the likely abuser of the child...”
36. On 21 May 1996 the Medicolegal Authority gave the applicant permission to consult, during 24 hours, four tape recordings from the examination of H. at the Family Advice Centre. He was not allowed to copy the tapes but had them transcribed.
37. On 3 June 1996 the Supreme Administrative Court invited the applicant's further observations. In his observations of 19 June 1996 he submitted a written opinion by the psychologist H.H., issued following the abduction. He also requested a hearing including the taking of witness evidence from the former girlfriend M., Dr A-K.R., the psychologist H.H. and Dr G.A., a child psychiatrist and consultant to the Ministry for Social and Health Affairs. Moreover, he objected to not having been provided with the full documentation underlying the Medicolegal Authority's opinion such as Dr A-K.R.'s and the psychologist J.K.'s observations. Lastly, he relied on a written opinion, dated 17 June 1996, by Dr G.A., who considered that the examination by the Family Advice Centre had not shown that H. had been sexually abused by the applicant. On the contrary, it transpired from the transcripts of the interviews that she had been led and pressurised by Dr A-K.R., the clear goal being to detect sexual abuse. Not all interviews had been recorded. Clinical annotations were missing from the records, which rendered it impossible for Dr G.A. to assess the credibility of the Family Advice Centre's examinations.
38. Following the Medicolegal Authority's request for an additional opinion, Dr E.R. and the psychologist T.P., in their joint opinion of 8 July 1996, expressed the view that the decision to take H. into care and place her first with her mother and later in a substitute family, had been justified and appropriate, considering both H.'s own words and her behaviour. They also took the view that the Family Advice Centre should have considered more thoroughly the conditions for an additional examination of H. given the fact that the psychological examination and the interviews with the parents had been insufficient. Further, they took a stand regarding the examinations carried out on the applicant's request during H.'s abduction by the psychologist H.H. As noted above, the applicant relied on a written opinion of H.H in the Supreme Administrative Court.
“... Psychologist H.H. has carried out psychological examinations on both H. and her father. A written opinion has been given on account of these examinations. It indicates that H.H. had examined the father on two occasions and the child on one occasion. It is questionable especially in the context of suspected sexual abuse that the same psychologist tests both the suspect and the abused child. .... The examinations were carried out without consultation with those involved in the earlier examination, which in our opinion shows professionally unethical and inconsiderate conduct on the part of the examining psychologist. ....”
39. In its further opinion of 29 July 1996 to the Supreme Administrative Court the Medicolegal Authority deemed the Family Advice Centre's examinations in 1995 to have been necessary and based on a reasonable suspicion of sexual abuse. The Medicolegal Authority had obtained the audio tapes and documents produced by the Family Advice Centre and had heard the psychologist J.K., Dr A-K.R. and the psychologist M.R. in writing. It had also obtained the above joint opinion of its standing experts.
40. On 1 August 1996 the Supreme Administrative Court invited the applicant's further observations. In his observations of 19 August 1996 he noted that he had not been provided with copies of the above supplementary opinion by Dr A-K.R and the psychologist M.R.
41. H. was missing from the authorities until 6 October 1996 when the police fetched her from the applicant's work place. She was placed in a family support centre (perhetukikeskus, familjestödscenter). The applicant was informed of her whereabouts on 22 October 1996.
42. On 8 October 1996 H. underwent an examination in a university hospital. A paediatrician, Dr H.L., stated in her written opinion of 21 November 1996 that she had not found any signs of sexual abuse in her examinations and found H.'s behaviour to be normal for her age. Dr H.L. did not, however, take any stand regarding the earlier medical opinions.
43. In a meeting on 21 October 1996 between social welfare officials and staff of the university hospital hesitation was expressed about undertaking new examinations concerning the alleged sexual abuse.
44. From 8 October 1996 to 16 July 1997 H. underwent child psychiatric examinations at the Tampere university hospital on the basis of a referral dating back to December 1995. During that period the applicant was heard at the surgery on 16 December 1996 and 28 April 1997 and he was consulted over the telephone on 20 February and 1 April 1997. In her written opinion of 15 September 1997 a child psychiatrist, Dr M.R., described H. as a very lonely 6 year old girl, whose basic human relationships with her parents and her brother and other persons close to her were coloured by argument and conflict. The examinations did not concern the sexual abuse suspicion as such an examination would have damaged the child's mental health. H. was considered to suffer from a severe stress reaction and to have adjustment difficulties and she was in need of possibly long-lasting child psychiatric treatment. The opinion recommended child welfare measures with a view to protecting the child.
45. On 7 November 1996 the Supreme Administrative Court dismissed the applicant's request for an oral hearing and a further examination of H., and upheld the County Administrative Court's decision with the following reasons:
“Since an oral hearing was held before the County Administrative Court, there is no reason to hold one before the Supreme Administrative Court.
In view of the opinions already obtained there is no need to obtain an additional opinion.
For the reasons given in the County Administrative Court's decision and considering, moreover, the disturbed behaviour of [H.], the Supreme Administrative Court considers that the conditions stated in section 16 of the Child Welfare Act have been met as regards the public care order issued on 27 March 1995. Accordingly, and in view of the requests in the matter, the evidence obtained, and the legal provisions invoked by the County Administrative Court, there is no reason to amend its decision.”
46. In a meeting with social welfare officials on 17 December 1996 the applicant was informed that H., who was diagnosed as suffering from post-traumatic stress, would be moved out of the family support centre within six months.
47. On 24 April 1997 in a meeting with social welfare officials, the applicant was informed that a substitute family home had been found and he was invited to comment in writing on the intention to transfer H. there.
48. On the same day he requested the Board to terminate the public care as being no longer justified. He submitted that H.'s initial examination in the Family Advice Centre had been conducted on the basis of the preconceived idea that sexual abuse had taken place. This suspicion had been categorically refuted in the written opinions of Dr G.A. and the psychologist H.H. H.'s behavioural disturbance had not been shown to result from the conditions in the applicant's home. Before the taking into care she had not displayed any signs of being disturbed. Moreover, her wish to continue living with him had been recorded repeatedly.
49. On 13 May 1997 the senior social welfare official refused the applicant's request that the public care be terminated, being of the view that no alternative care solution existed. Open-care assistance would be insufficient for ensuring the child's healthy physical and mental development. By placing H. in substitute care, the authorities were seeking to provide her with a secure and home-like growing environment and to ensure her mental rehabilitation as well as a healthy development corresponding to her age. Having received the decision, the applicant pursued his request before the Board.
50. In his submission of 19 May 1997 he objected to the intended transfer of H. to a substitute family home and proposed that she be placed in the family of her former day care nurse, who had consented to receiving her. H.'s mother again consented to the transfer to a substitute family home.
51. On 21 May 1997 the Board decided to transfer H. to the substitute family home. Her removal took place on the following day. The Board's decision stated, inter alia, that:
“According to M.R., the examining doctor of the Tampere university hospital, H. suffered from post-traumatic stress, inter alia, because of the abduction, and for the purpose of rehabilitation H. should be provided with a safe home-like growing environment. No suitable substitute family was found that could have taken the child, inter alia, because of the abduction threat by the father. A family home was found which has a home-like atmosphere and has long experience of the care of different children taken into public care. In the family both parents are at home, looking after the children.”
52. On 26 June 1997 the Board also confirmed the official's refusal to terminate the public care, relying on the reasons given in the official's decision. It further noted that the care order had been triggered by the disturbed behaviour which H. had been repeatedly displaying during 1994. From the sexual point of view her symptoms had differed from those of other children of her age. She had been placed in public care on the basis of the Family Advice Centre's examinations. Her growing environment had been jeopardising her healthy development and open-care assistance had been considered insufficient.
53. The applicant appealed against the Board's decisions of 21 May and 26 June 1997, arguing that it had failed to hear H. and the other interested parties. In considering that there was no alternative to the public care and in finding open-care assistance insufficient the Board had based itself on events which had occurred two years ago, without obtaining any fresh evidence as to the justification for its decisions. He furthermore recalled that, when H. had been removed from him in October 1996, the social welfare officials had requested her fresh examination in the clinic in view of the expert opinions submitted by him. However, after the Supreme Administrative Court had rejected his final appeal against the care order, social welfare officials had allegedly amended their request to the clinic, asking instead that H. receive treatment according to their instructions.
54. On 16 July 1997 in a meeting involving social welfare officials, the substitute parents and medical staff, it was observed that according to the patient records of the clinic H.'s symptoms, which had already abated in the family support centre, had continued to diminish in the substitute family home.
55. On 30 October 1997 the County Administrative Court heard thirteen witnesses. It had at its disposal, inter alia, a written opinion of a psychologist, E.S., whom the personnel of the family home had consulted. On 5 December 1997 it rejected the applicant's appeal against the decision to transfer H. to the substitute family home. It gave the following reasons:
“... Having been taken into public care, [H.] was officially placed in a substitute family from 6 October 1995 to 6 October 1996. In reality she was a fugitive with her father from 6 November 1995 to 6 October 1996, when she was placed in a family support centre.
A doctor of the university hospital who examined [H.] after her escape journey considered that she should be provided with secure conditions resembling a home. Her individual nurse at the family support centre has considered the placing of H. in a substitute family to be in her best interests.
On the basis of the aforementioned and, in particular, given [H.'s] age and the fact that she will be beginning school, the decision to change the premises for implementing the public care ... has been in her best interests.”
56. The County Administrative Court also rejected the appeal against the decision not to terminate the public care. It reasoned as follows:
“On 6 November 1995 [the applicant] abducted [H.], who had been placed in the care of the Board, and was hiding her at different locations until 6 October 1996. After the escape journey [H.] was diagnosed as suffering from various behavioural disturbances, a serious post-traumatic stress syndrome and adjustment difficulties. Throughout her public care it has been difficult to initiate cooperation between the social authorities and [the applicant]. According to the evidence presented, [H.] has adjusted well to the substitute home. In this situation the decision to maintain the public care has been in her best interests.”
57. The applicant appealed further, requesting an oral hearing before the Supreme Administrative Court. He argued, inter alia, that H. should have been heard prior to the Board's decisions.
58. In response to the applicant's further query as to when the public care would be terminated, it was noted in the care plan of 24 April 1998 that H. was in the process of settling into the substitute family home. She was doing well in school and she would be able to stay in the family home as long as she needed to. It was also stated in the care plan that the social welfare authorities would consult child psychiatric experts in order to determine H.'s long-term needs as to whether she needed a long-term placement or whether the care could be terminated.
59. In the spring of 1998 social welfare officials inspected the home of the applicant and his then common-law spouse. It appears that no report was made.
60. In a meeting on 12 June 1998, which the applicant had not been invited to attend, social welfare officials and staff of the hospital and the Family Advice Centre agreed that the symptoms displayed by H. “more than likely” resulted from her having been subjected to sexual abuse. By now the substitute care had provided H. with sufficient security and in the prevailing circumstances she would be able to develop into a balanced young person and adult. A termination of her public care could have unforeseeable consequences. Her meetings with the applicant would be supported also in the future.
61. On 11 January 1999 the Supreme Administrative Court, without having held an oral hearing, rejected the applicant's appeal against the County Administrative Court's decision of 5 December 1997. The court found the various documentary evidence and the evidence taken at the lower court's hearing sufficient for a ruling as follows:
“Section 17, subsection 1 of the Child Welfare Act provides that the Social Welfare Board must, whenever possible in view of the child's age and level of development, clarify his or her own wishes and opinion, and afford a child who has reached the age of twelve as well as his or her parents the opportunity to be heard, before a decision as to the child's placement in public care outside his or her home or as to whether to terminate such care. Considering that [H.] underwent examinations at the child psychiatric clinic of a university hospital and that, according to the results, she was suffering from a serious stress reaction and an adjustment difficulty, and considering that, according to [the Board's] decision of 21 May 1997 she had stated, after an introductory visit, that she was willing to move to the family home, although her opinion has later varied, her opinion has been clarified in accordance with the requirements of the aforementioned provision of the law.
Before the challenged decisions were reached the parties were afforded an opportunity to be heard. In the County Administrative Court an opportunity to be heard was provided and an oral hearing was held. The Supreme Administrative Court has further afforded the applicant an opportunity to consult all documents in the case. Accordingly, he has been provided with the material which has affected the decision.
Section 1 of the Child Welfare Act provides that a child is entitled to a secure and stimulating growth environment as well as to a harmonious and well-balanced development, and has a priority right to protection. Considering the evidence presented in respect of the reasons leading to the public care order, [H.'s] mental symptoms and the changes which have occurred in her life, the conditions for maintaining her public care and changing the premises of the care outside her home, as stipulated in sections 16 and 20 of the Child Welfare Act, existed at that stage. On these grounds and considering the reasons and legal provisions relied upon in the County Administrative Court's decision, there is no reason to amend the outcome of that decision.”
62. In the care plan meeting on 15 January 1999 and following the applicant's request that the public care be terminated, it was agreed that the social welfare authorities would hold a meeting with child psychiatric experts to assess when it would be best to carry out the examinations in the child psychiatric family ward at the university hospital.
63. On 28 January 1999 the social welfare authorities remitted the applicant and H. for an examination at the ward. The examination with regard to the applicant's parenting skills, his interaction with H. and H.'s psychological state and need for treatment took place in December 1999. In their opinion of 3 February 2000 Drs P.P-A. and E.K. considered, inter alia, that H.'s mental state had clearly improved during her placement in public care to which she seemed to have adjusted well. She was still suffering from a serious emotional disturbance which would require at least one or two psychotherapy sessions a week during the next two or three years. The relationship between her and the applicant displayed a certain inhibition and distance but the conditions for their bonding to improve were present. H. would need long-term individual therapy and long-lasting cooperation between the family, the carers and the child welfare authorities. They considered that the applicant and H. should have their new joint treatment sessions in June and August 2000.
64. In a meeting on 13 March 2000 social welfare officials and the parents agreed that H.'s and the applicant's relationship would be observed by the child psychiatric family ward in June and August 2000 with a view to issuing an opinion on the conditions for the termination of the public care. It was further agreed that H. would begin receiving therapy. The therapy sessions began in April 2000.
65. In her opinion of 28 September 2000 Dr P-P.A stated the following:
“It has been difficult to achieve cooperation and a treatment relationship at the ward, and no functioning cooperation relationship has emerged. ... The father has difficulties in processing H.'s situation at an emotional level and in seeing the burdening effects of the continuous ... trials on the child. He has repeatedly voiced mistrust towards the authorities and concerning the aims of and grounds for the treatment. Also his attitude towards H.'s individual therapy has changed from having been positive to being negative. Owing to this his acceptance of H.'s treatment has remained problematic ... H. needs long-term individual child psychiatric treatment and long-term cooperation between the family, medical staff and child welfare. ... The father's willingness to ensure the management of H.'s individual therapy has remained uncertain. Having regard to the above and to the evasive and distant nature of their interaction ... there are no preconditions for terminating the public care. ... The treatment will now be focusing on H.'s individual therapy. ... Interaction treatment at the ward will not be recommended for now. ...”
66. From 27 January to 8 February 1995 there was no formal decision concerning access.
67. The emergency care order of 8 February 1995 included an access restriction to the effect that the applicant and H. were allowed to meet twice a week under supervision. An agreement concerning access from 7 to 23 February 1995 was signed by the applicant. According to him, notwithstanding that he signed the agreement, he opposed restricting access. According to the Government, no access restriction was in force at the relevant time as the applicant had consented to the arrangement.
68. The Board's decision of 24 February 1995 to uphold the emergency care included an access restriction to the effect that the applicant and H. were allowed to meet once a week under supervision.
69. According to the Board's decision of 27 March 1995 following a meeting with the parents on 24 March 1995, H. would continue living with her mother while seeing the applicant under supervision. The decision did not specify the frequency of the meetings and it was to be reviewed at the end of 1995. The applicant accompanied by counsel took part in the Board's meeting on 27 March 1995. Following the meeting, the applicant was informed that he could visit H. at the family support centre once a week.
70. In a care plan of 26 October 1995 following a meeting with the applicant on 11 October 1995, contacts were reduced to one supervised three-hour visit once a month, starting on 6 November 1995 in the family support centre. This arrangement was to be in force until March 1996. The applicant objected to the restriction and was allegedly not provided with all relevant documentation. No formal decision was issued.
71. Following the abduction of 6 November 1995, the Board by its decision of 8 November 1995 prohibited access until 31 May 1996, pursuant to section 25 of the Child Welfare Act and section 9 of the Child Welfare Decree. The applicant had been invited to attend the Board's meeting, but he sent instead a letter that was read out at the meeting. As noted above, H. was found with the applicant on 6 October 1996.
72. On 22 October 1996 the director of the family support centre issued a formal decision, prohibiting all meetings between the applicant and H. until 21 November 1996 owing to the risk of abduction. The applicant was informed that despite the prohibition he would be allowed to see H. in connection with her therapeutic visits to the clinic. On 22 November 1996 the Board issued a decision, maintaining the access prohibition until 30 May 1997. It referred to the abduction following which the applicant had been hiding her from the authorities for eleven months. Referring to section 15, subsections 3 and 4, of the Administrative Procedure Act, the Board did not hear him, considering that such a hearing could jeopardise the purpose of the decision and that the decision could not be postponed. He appealed to the County Administrative Court. In its rejoinder of 21 January 1997 to the applicant's appeal the Board submitted that the applicant had allegedly said, during a visit to the clinic on 16 December 1996, that he intended to abduct H. again. Moreover, the abduction threat had not been the only reason for the access prohibition as H. had been diagnosed as suffering from post-traumatic stress syndrome for which she needed care.
73. In a letter of 11 February 1997 the senior social welfare official clarified the access prohibition ordered on 22 November 1996. Despite the prohibition, the applicant was allowed to meet H. during her therapeutic visits to the clinic and to write to and telephone her in the family support centre. It appears that, even though encouraged by social welfare officials to do so, he did not use this opportunity.
74. On 21 February 1997 the County Administrative Court quashed the access prohibition imposed on 22 November 1996 and remitted the matter for a re-examination by the Board, finding that the Board had not shown sufficient grounds for not hearing the applicant prior to its decision. The decision was notified to the social welfare authorities on 20 March 1997.
75. On 21 May 1997 the Board issued a formal decision restricting access which was to be in force until 31 December 1997. The frequency and implementation of the meetings were to be agreed upon in connection with the presentation of the care plan indicating where H. was going to live. The applicant had been heard on 24 April 1997.
76. From 1 September 1997 the social welfare authorities repeatedly tried to arrange meetings with the applicant to draw up a new care plan in order to arrange future visits between him and H. However, he never accepted the suggested dates nor did he make his own proposals.
77. In his letter of 5 January 1998 the applicant demanded that the family home be informed of his right to meet H., given that the last access restriction had ceased on 31 December 1997. In a letter of 16 January 1998 a social welfare official informed him that it was a normal practice concerning the arrangement of meetings with children placed in a substitute family to agree on the conditions at a meeting at which the social welfare authorities, the substitute parents and the parents were present. She further noted that:
“....we have on several occasions tried to fix consultations for the purpose of arranging meetings between you and H. but no progress has been made. The situation at present is that we have not made any decision on the restriction of the right of access but have agreed with the family home that you will be able to meet H. there. The frequency of meetings would be one visit per month, and you can directly agree with the family home on the most convenient dates for the meetings. ....”
78. On 20 January 1998 the family home and the applicant agreed that the applicant and H. would meet in the paternal grandfather's home. The social welfare authorities informed the applicant in a letter dated 21 January 1998 that he could only visit H. in the substitute family home owing to the fact that H. had not seen him for a long time. Neither of the social welfare officials' letters of January 1998 constituted a formal decision.
79. The social welfare authorities tried to arrange meetings to draw up a care plan again in February 1998 but a meeting was not held until 9 March 1998. According to the care plan, the applicant was to visit H. two times in the substitute family home and once at the paternal grand father's. The leading social officer would also visit the applicant in his home on 7 April 1998. The social welfare officials did not accept the applicant's proposal that H. would visit his home every other weekend. No formal decision was made.
80. In a care plan meeting on 17 April 1998 social welfare officials did not accept the applicant's proposal that H. be allowed to stay with him and his common-law spouse every other weekend. According to the care plan of 24 April 1998, one visit a month would take place in the substitute family home and once a month the substitute parents would bring H. to the paternal grandfather's for the day. The applicant would be allowed to organise certain outings with H., as long as she would not be subjected to situations creating confusion in her as to which was really her permanent home at that particular moment. The access restriction was to be in force until 26 June 1998. No formal decision was made.
81. Since a care plan meeting on 26 June 1998 it appears that the visits have been fully agreed on. It was agreed that H. would visit the applicant every other weekend from Saturday to Sunday. She could also spend a week with her paternal grandfather during the summer. The care plan indicated that her public care remained justified in the light of the conclusions reached in a meeting the same month. In a care plan meeting on 18 September 1998 it was agreed that H. would visit the applicant every other weekend from Friday until Sunday and spend the autumn holiday with him. The Christmas holiday would be agreed on between the substitute family home and the applicant. In a care plan meeting on 15 January 1999 it was agreed that the weekend visits were to be conducted as earlier. H. could also spend the winter holidays with the applicant. In a care plan meeting on 13 March 2000 it was agreed that H. would spend four weeks with the applicant in July 2000. It appears that H. has continued to visit the applicant's home every other week and to spend part of her summer holidays with him.
82. Meanwhile, in civil proceedings initiated before the Tampere District Court (käräjäoikeus, tingsrätten) on 15 March 1995, H.'s mother requested, allegedly on the recommendation of social welfare officials, that she be granted sole custody of the children and that H. be ordered to live with her. In an interim decision of 15 June 1995 the District Court ordered that H. should live with her mother, following the termination of the public care. It adjourned the further consideration of the case.
83. In September 1996 the applicant started cohabiting with a woman, whom he married in 1999.
84. On 3 February 1998 the District Court confirmed an agreement between the applicant and H.'s mother to the effect that they would exercise joint custody of their son K., whereas the applicant would have sole custody of H. and she would live with him following the termination of her public care.
85. On 7 August 1998 the District Court, in response to the parents' joint request, awarded the applicant sole custody of K., who had moved into the home of the applicant and his common-law spouse in July 1998.
86. On 3 June 2003 H. was placed temporarily with the applicant and the public care was terminated on 2 February 2004.
87. On 9 November 2004 H. was again taken into emergency care on the applicant's request. On 4 May 2005 she returned to live with him.
88. On 30 April 1996 the Board reported the applicant to the police, on suspicion of having sexually abused H. and having abducted her in violation of the public care order and the access restriction.
89. Further, on an unspecified date, the applicant was charged with having sexually abused H. He was further charged with having abducted her on 6 November 1995. On 28 May 1997 the Tampere District Court held its first hearing. It subsequently heard the applicant and nine witnesses, including the paternal grandmother, the day carer, Drs A.R. and J.K., and received several written expert opinions.
90. In its judgment of 29 January 1998 the District Court, notwithstanding that it considered H.'s behaviour at the time of the initial care order not to have been normal for her age, found that the evidence did not show that the applicant had committed the sexual acts that he had been charged with. It thus rejected the charges. It declined to consider the charges relating to the abduction, as the Board had not attested that the bringing of charges was in the interests of the child. The court reasoned as follows:
... Taking into account the incriminating facts, the District Court does not find it established in a reliable manner that [the applicant] is guilty of aggravated sexual abuse of a child nor of sexually indecent behaviour towards a child. ...
Witness A.K. [the day carer] had made notes about H.'s behaviour in day care between 16 November 1994 and 12 January 1995. When A.K. was heard as a witness, she explained that by “bottom” she had meant “the genitals”. The notes contain entries made in 35 different days. According to the notes of A.K., H. had “tickled” her genitals on all those days, which had lasted from 15 minutes to one and half hours. ....
According to witness A-K.R., who is specialising in child psychiatry, ... a child's behaviour becomes sexually coloured after sexual abuse. Such children masturbate more than usual. The witness had earlier met only one child who had masturbated to the extent of the present one. Child psychiatric literature does not give for this extensive masturbation any explanations other than that the child has in some way been subjected to sexuality. The witness is of the view that the child has been subjected to behaviour which is inappropriate for a child, at least when she has clearly had pathological behaviour. .... The witness is not able to tell whether masturbation is something that the child has herself discovered, but it has clearly been indicated that it is something that she has in some way done together with the father. According to the witness, H. is a strong and determined child whose words are even more convincing than the words of children usually are. In the view of the witness, the most important report in the case are the notes made by the day care nurse. ....
Witness J.K., who worked as a psychologist at the Family Advice Centre, has stated that a girl masturbating is not necessarily a sign of incest that she has experienced. However girls, who have had some kind of sexual experiences, often show disturbed or excessive sexual behaviour. Excessive masturbation could be a sign of experiences other than sexual abuse, for example other kind of mental instability. There may be hyper or overactive children, distressed children or children showing this kind of behaviour without any explanations thereto. ...
91. On 26 August 1999, the Turku Court of Appeal (hovioikeus, hovrätten) confirmed the acquittal. In addition to the reasons given by the District Court, it found, inter alia, that it could not be concluded from the Family Advice Centre's initial examination that H. had been sexually abused.
92. The relevant legislation is outlined in the Court's judgments in K. and T. v. Finland [GC] (no. 25702/94, §§ 94-136, ECHR 2001-VII) and R. v. Finland (no. 34141/96, 30 May 2006).
VIOLATED_ARTICLES: 8
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-90304
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF LEVINTA v. MOLDOVA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 6-1;Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: 5. Mr Vitalie Levinţa (“the first applicant”) was born in 1971 and Mr Pavel Levinţa (“the second applicant”) was born in 1974. They live in Cahul.
6. The facts of the case, as submitted by the parties, may be summarised as follows.
7. On 30 October 2000 the applicants, who are brothers, were arrested in Russia by the local police following a request from the Moldovan authorities. They were suspected of membership of a criminal organisation and of murdering, or attempting to murder, a number of persons in Moldova (see Popovici v. Moldova, nos. 289/04 and 41194/04, 27 November 2007 for more details in respect of other persons accused of membership of the same criminal group). All five of the other persons on trial with the applicants made self-incriminating statements during the pre-trial investigation, and fully accepted their guilt in committing the crimes with which they had been charged. All (with one exception, a former police officer) retracted these statements at a later stage, claiming that they had been tortured in order to extract those statements.
8. On 31 October 2000 the applicants were examined by a doctor, who found bruising around their eyes, a bruise on the knee of the first applicant, a reddish area on the chest of the second applicant and marks left by handcuffs on each of the applicants’ wrists. The applicants explained that these injuries had been caused during their arrest.
9. On 3 November 2000 they were handed over to the Moldovan police and flown to Moldova, where they were detained in the Chişinău police inspectorate from approximately 3 p.m. According to a document signed by both the Russian and Moldovan authorities, no complaints or other issues were raised by either the applicants or the Moldovan authorities.
10. According to the applicants, they were ill-treated throughout the afternoon of 3 November 2000 and the night of 3-4 November by Mr V. Ivarlac, the investigator from the Department in the Prosecutor General’s Office responsible for investigating exceptional cases, and by officers G. Stavila, V. Gusev, V. Ciobănaş and V. Railean from the Chişinău police inspectorate. The officers put gas masks on them and suspended them for hours on a metal bar with their hands tied behind their backs (a method known as “swallow” (ласточка), and somewhat similar to “Palestinian hanging”). While in that position, the applicants were hit with rubber sticks on their bodies and the soles of their feet and weights were hung around their necks. From time to time the flow of air through the gas mask was stopped until they fainted.
11. At approximately 3.30 p.m. on 4 November 2000 an ambulance was called to give emergency medical aid to the first applicant. The doctors found bruises on his face and head, and diagnosed him as suffering from contusion of the soft tissues on his face, head trauma and possible post-traumatic encephalopathy (a second-degree emergency). They also noted that “because he is very dangerous, the police have not authorised [the applicant’s] admission to a hospital”.
12. The applicants asked to see a lawyer. On 4 November 2000 at approximately 3.30 p.m. the applicants were briefly allowed to meet their lawyers, in the presence of the investigator and police officers, whose presence effectively excluded the possibility of giving proper legal advice. Observing signs of ill-treatment and having spoken to their clients in the presence of the investigator, the lawyers requested a medical examination of their clients.
13. Medical examinations of both applicants were carried out on the same day at their lawyers’ request, in the presence of the investigators. The medical expert found that the first applicant had bruises to his eyes and the head, circular irritations on the wrists and three oval bruises on one hand, and injuries to the soles of both feet. In response to a specific question, the expert stated that the injuries had been caused four to six days earlier and could have been caused on 31 October 2000. After signing and sealing the report, the expert added a note, according to which the first applicant’s injuries were considered “minor body injuries”. In the case of the second applicant, the expert found bruises on the face, chest, ribs, the soles of the feet, circular irritations on the wrists and two oval bruises covered with crusts on his hand. The expert also noted that the injuries could have been caused on 31 October 2000 and were considered to be minor injuries.
14. According to the applicants, a number of the injuries found by the expert were not mentioned in the medical report drawn up in Russia on 31 October 2000, prior to the applicants’ transfer to Moldova.
15. During their interrogation on 4 November 2000 both applicants denied involvement in any crime. Although their lawyers obtained permission from V. Maiduc, the deputy Commissioner of the Chişinău police inspectorate, to meet their clients as of 4 November 2000, the authorisation was not signed until 8 November 2000 and the authorities refused to allow the applicants to meet their lawyers before that date. Mr Maiduc was frequently unavailable, but was allegedly the only person who could authorise a meeting between the lawyers and the applicants. As a result, the lawyers could not meet their clients for four days to give them proper legal advice (see paragraph 12 above).
16. On 6 November 2000 a court ordered that the applicants be remanded in custody for 30 days. During that hearing they both denied having committed any crime. On the same day the Deputy Prosecutor General rejected the first applicant’s lawyer’s challenge to the investigator, finding that the latter had given the lawyer proper permission to meet his client and had allowed the medical emergency team to see the accused, and that no translator had been requested or was necessary.
17. The applicants submit that, no longer able to resist ill-treatment, they signed self-incriminating statements on 7 and 8 November 2000. Only then were they again allowed to see their lawyers on 8 November 2000.
18. According to the first applicant, during the meeting of 8 November 2000, he could not speak privately with his lawyer but was immediately interrogated in his presence and in the presence of both the investigator and an officer of the Chişinău police inspectorate. The police officer present in the room was not initially mentioned in the minutes of the interviews. The Government disputed these circumstances, stating that the confidentiality of the meetings had been observed. The minutes of the interview with the first applicant on 8 November 2000 included a statement by the lawyer, according to which a request to have a private discussion with his lawyer before the interview had been refused and an “operative agent”, who was not an investigator, was present. His presence was, in the lawyer’s view, intended to subject the applicant to psychological pressure.
19. On 13 November 2000 the first applicant’s lawyer complained to the Prosecutor General’s Office, invoking Articles 3, 5 and 6 of the Convention, stating that his client was being ill-treated in order to obtain confessions from him, and that the rights of the defence were being seriously violated by the failure to allow him to meet his client. He alleged that investigator V. Ivarlac had told him that he could meet his client only after the first interview. The lawyer added that during the interview of 8 November 2000 his client whispered to him and indicated, using signs, that he had been ill-treated again and nodded towards a police officer (Mr Lungu), who was present at the interview. He queried the participation of the police officer in the interrogation process since that was the prerogative of the investigator alone.
20. The lawyer suggested that the police officer was there in order to ill-treat his client and put psychological pressure on him. After noting the presence of the police officer in the minutes of the interview, the investigator wrote a note stating that the officer had been included in the investigating team and thus could question the applicant. The lawyer submits that at the beginning of the investigation he was not given a list of all the persons included in the investigating team, as required by Article 110 of the Code of Criminal Procedure (see paragraph 58 below).
21. The lawyer also alleged that threats were made against him personally (to the effect that a criminal case would be fabricated against him and that he would be arrested) following his challenge to the investigator and his comments on the various procedural irregularities. Investigator Ivarlac and officer Lungu shouted at him and threatened him in the presence of his client. Having seen how they treated his lawyer, the first applicant was even more afraid and asked the lawyer to stop arguing, since he would be ill-treated again as a result.
22. The investigator stated that the first applicant had signed a confession on 7 November 2000 but refused to show this to his lawyer. His client’s request to speak in private with his lawyer was rejected in an abrupt manner.
23. A similar complaint on behalf of the second applicant was addressed to the Chişinău prosecutor’s office on 16 November 2000. On 30 November 2000 prosecutor V. Pitel asked the Chişinău Police Commissioner to allow the lawyers’ access to the applicants. On 15 December 2000 he informed one of the lawyers that “certain of the complaints” had been found to be partially well-founded and had formed the grounds for making submissions to the Chişinău Police Commissariat, the Ministry of the Interior and the Ministry of Justice.
24. On 11 December 2000 the head of the investigations department of the Prosecutor General’s Office, Mr Ş. Ştogrea, replied to the first applicant’s lawyer’s letter of 13 November 2000, that no violation of procedure had been established and that the first applicant had not personally made any complaints. He did not annex a copy of the decision in accordance with Article 93 of the Code of Criminal Procedure (see paragraph 58 below).
25. On 12 December 2000 the first applicant’s lawyer complained to the Chişinău prosecutor’s office, stating that his client had been detained since 4 November 2000 in police cells in the Chişinău police inspectorate, rather than in a remand centre of the Ministry of Justice, as required by Article 380 CCP (see paragraph 58 below). In further letters of 15 and 20 December 2000 the applicants’ lawyers requested their clients’ transfer to the remand centre of the Ministry of Justice in Chişinău (also known as “prison no. 3”). They referred to the lack of necessary facilities for meeting their clients in the premises of the police cells in the Chişinău police inspectorate and to the applicants’ medical condition, which could not be treated in their current place of detention. They submitted that, according to the regulations, an individual’s detention in the police cells of the Chişinău police inspectorate could not last for more than 10 days. On 15 March 2001 the lawyers were informed that their clients would shortly be transferred to prison no. 3.
26. On 14 November 2000 judge V. Potlog from the Chişinău Regional Court informed the Chişinău Police Commissioner that during the examination of the first applicant’s appeal against the court decision of 20 April 2000 to remand him in custody, the court had found that the first applicant’s right to meet with his lawyer had been violated by officers of the Chişinău police commissariat. He asked the Commissioner to take measures to prevent similar conduct in the future.
27. On 20 December 2000 the second applicant asked the Prosecutor General to have his arm examined by a doctor since, he alleged, he had lost all movement in it as a result of ill-treatment by the police on 4 November 2000. He never received a reply. On 22 March 2001 his lawyer asked the Prosecutor General to reply to his client’s request of 20 December 2000. He was informed, by a letter of 4 April 2001, that his client had been sent a reply on 29 December 2000 in which it was explained that any complaints were to be addressed directly to the trial court following the submission of the case to that court. In addition, a medical examination of the second applicant had been carried out. In reply, the lawyer requested confirmation from the court to which his client’s complaint had been forwarded, as well as the outgoing number of the letter addressed to him, since he had not received any letter dated 29 December 2000. In addition, no medical examination of his client had been carried out following his complaint of 20 December 2000. The lawyer considered inadequate a further reply from the Prosecutor General dated 12 May 2001 and he requested detailed answers to his questions. It is not clear whether he received an answer.
28. During the examination of the case by the Court of Appeal in 2001 the applicants also complained about their ill-treatment. The court forwarded their complaint to the Prosecutor General’s Office. No action appears to have been taken on the basis of that complaint.
29. In January 2003 the applicants informed the administration of prison no. 29/13 in Chişinău about their fear of reprisals by a group of detainees in that prison. The applicants asked to be transferred to prison 29/4. They were transferred to that prison on 12 January 2003, and did not inform the administration of any threat received or otherwise alert the authorities to any danger to their lives or health in that prison. On 19 April 2003 the applicants were severely beaten by other detainees from their own brigade. They claim that for dubious reasons the security personnel were absent from their posts and thus did not intervene, and that the metal gates separating their block from other blocks were left unlocked, in violation of the rules. According to several reports submitted by the Government, during their free time detainees could either remain in their cells or visit common areas within their brigade’s premises. There were therefore no metal gates or other barriers between inmates from the same group of cells and there could not be “forced entry” into the applicants’ cell. The applicants had declared that the injuries had been self-inflicted while practising martial arts, and had refused to make any written statement.
30. Both applicants were taken to a hospital and were then transferred to prison no. 29/15. According to the Government, the prison administration gave the applicants the option of requesting detention in separate premises from the other detainees, in order to protect them from a possible future attack, but they refused. They were placed in an increased security cell, but were free to visit common areas. On 6 September 2003 they allegedly went to a meeting in a common area organised by another detainee. The meeting ended with a fight, as a result of which the applicants were again severely beaten by other detainees. The applicants claim that the security personnel disappeared for about 30 minutes during the event. They were again taken to hospital with serious injuries, and later transferred to another prison. According to the applicants, no serious investigation into these two assaults has taken place and none of the attackers has been identified and punished. According to the Government, three organisers of the meeting were identified and a criminal investigation was opened into the event. The applicants never complained about either of the attacks and refused to make statements to the administration against the detainees who had attacked them. The various investigations opened into the events of April and September 2003 ended on 12 May, 15 October and 10 December 2003 respectively, finding that the applicants had refused to avail themselves of additional measures of protection offered to them by the prison administration, fearing that such measures would diminish their reputation in the criminal world. The administration of the two prisons in which the attacks had taken place took measures to reinforce security, in order to minimise the risk of similar acts in the future.
31. In a letter to the Court of 28 February 2006 the first applicant complained that he had not received the specialised medical treatment which he required, on account of the absence of the necessary medical equipment. He also claimed that his transfer to prison no. 5 in Cahul on 10 March 2004 had been premature, in that he had not yet recovered from the last assault on him.
32. On 16 April 2002 the Court of Appeal, acting as a first-instance court, found all seven suspects guilty. Each applicant was sentenced to twenty years’ imprisonment.
33. The court found that each applicant had been involved in seven different criminal acts (murder and attempted murder), typically assisting others to commit the crimes (driving getaway cars, supplying weapons and uniforms, etc.). Each applicant was a member of the criminal organisation and was guilty of illegal possession of weapons.
34. The evidence on which the court based its judgment was, in each case, the declarations of the seven co-accused, declarations by surviving victims or their relatives, statements of witnesses and expert reports.
35. In the court’s opinion, the declarations of the co-accused were consistent and the fact that they had all subsequently withdrawn their statements, alleging that they had been obtained by ill-treatment, was merely an attempt to avoid responsibility. The court emphasised the dates on which each of the accused had made confessions in the presence of their lawyers; some of these confessions had been recorded on film. This excluded any possibility that the statements had been made as a result of ill-treatment, given also that no evidence of ill-treatment had been adduced. The court referred to a medical report of 9 April 2000 (before the applicants’ arrest and apparently drawn up in respect of some of the other accused) in which no signs of ill-treatment had been found.
36. The surviving victims and their relatives, as well as witnesses, testified as to the manner in which the crimes had been committed, or described having sold cars to “unknown persons” or having seen such unknown persons carry out the crimes. None of them declared that they had seen any of the co-accused at the scene of the crimes.
37. The expert reports determined the manner in which the crimes had been committed and the types of weapons used.
38. In the attempted murder of Mr Durnopian and others a weapon was used which was subsequently found during a search conducted on 24 March 2000 in an apartment rented by the second applicant. Further weapons were found in that apartment, including automatic rifle ammunition which was identical to some of the cartridges found at the scene of the murder of Mr Rotari and Mr Gancu.
39. In addition, a mobile telephone operator submitted a list of all incoming and outgoing calls made from a telephone belonging to the first applicant (which, the trial court stated without any further detail, had also been used by the second applicant). During the preparation of the murder of Mr Grişcenco on 10 February 2000, this telephone had been frequently used to contact several of the co-accused.
40. Two witnesses confirmed that unknown persons had come to them five or six years earlier and had purchased five sets of dark uniforms. These were later used during the murder of Mr Grişcenco.
41. In their appeal in cassation against the judgment of the Court of Appeal, the applicants submitted the following.
42. O.S., one of the alleged masterminds of most of the crimes attributed to the criminal organisation of which the applicants were allegedly members, declared in court that he had committed some of the crimes he was charged with, but that the applicants had not participated in any of them. He claimed that he had been forced to make declarations against the applicants as a result of ill-treatment. According to the applicants, even the declarations made by O.S. during the investigation were contradictory, since he had claimed to have seen one of the applicants in two different places at the same time. In his statement, another co-accused (S.) declared that he was not sure whether he had seen the second applicant in the getaway car and then replied to the lawyer’s direct question that he had not seen him at the crime scene. However, the trial court had merely stated that S. confirmed the second applicant’s participation in the crime.
43. Despite the court’s statement that there was no evidence of ill-treatment, substantial evidence confirming ill-treatment had been submitted to the court in the form of medical reports and complaints.
44. The court had paid no attention to the complaints regarding the violation of the rights of the defence, notably the lack of access to their lawyers during the period when they had been ill-treated.
45. On 17 September 2001 the prosecutor had declared that all charges against the applicants were withdrawn due to a lack of evidence of their guilt. However, on 21 September 2001 he radically changed his position and requested the court to find them guilty, although no new evidence had been added to the file. This contradictory behaviour confirmed, in the applicants’ view, that the prosecution itself was not convinced of their involvement.
46. On 24 September 2001 the prosecutor had requested and obtained the suspension of the trial and the re-opening of the investigation, having shown the judge a letter from the Prosecutor General. None of the co-accused or their lawyers was shown the contents of that letter, despite their requests to that effect.
47. During the hearings in court, three of the co-accused declared that the applicants had nothing to do with the crimes and that they had made their statements as a result of ill-treatment.
48. In their address to the Supreme Court of Justice the applicants added that neither of them had been informed of his right not to make statements incriminating the other, since the law entitled them not to testify against close relatives.
49. During the reconstruction of events officers had committed serious violations of procedure, as was clear from the video recording of the event: they had asked leading questions and even given their own answers to them, and had then shown the accused where to go, where to stop, etc. The second applicant was not involved in any reconstruction of events.
50. Two of the charges against the applicants (conspiracy to commit murder and murder of Mr Grişcenco) were not brought against them until 25 December 2001, during the court hearing, and those charges had been based only on statements made by one of the co-accused on 19 December 2001. However, the author of those statements declared that he had refused to cooperate in the conspiracy and that he was unaware of any tangible actions or plan by the applicants to commit the murder.
51. In addition, although the prosecution claimed that the second applicant rented the apartment from O.I. after seeing her advertisement in newspaper M., no such advertisement had appeared in that newspaper and O.I. stated in court that she had not placed such an advertisement. She declared that she knew the second applicant and allowed him to use her apartment in 1999. In early 2000 she agreed with the second applicant to give the keys of the apartment to O. Thereafter the applicants left for Russia. During the investigation she had to make false statements under pressure from the investigators. The applicant argued that he could not be held responsible for what happened in the apartment after he transmitted the key and left for Russia.
52. The first applicant had made five self-incriminating statements, three of which were dated 7 November 2000. The two others had not been dated, nor properly registered as evidence, yet they formed part of the evidence on which the court had based its judgment.
53. The video recording of the reconstruction of events with one of the co-accused (L.) clearly showed one of the police officers wearing sunglasses which later appeared on L. In court L. declared that he had been ill-treated in the police car in order to testify as instructed. He was then told what to say and how to proceed and was made to wear the sunglasses in order to disguise signs of ill-treatment. He testified in court that he had not known the applicants and that the police and investigators had shown him their pictures.
54. In restating the various violations of their rights and their illtreatment, the applicants invoked the Constitution and the Convention. They stated that all their complaints had been examined superficially and that all the evidence against them had been obtained through violent and unlawful means.
55. The Supreme Court of Justice reviewed the findings of the Court of Appeal and found that that court had adopted a lawful judgment. In particular, it found that the lower court had not based its judgment only on the statements by the co-accused, but also on other evidence, although the confessions were the basis for the applicants’ convictions.
56. The court cited the relevant parts of the declarations made by the co-accused, including the applicants, and emphasised that in each case the statements were made in the presence of lawyers and were often recorded on film, which depicted no signs of ill-treatment or undue influence. The court noted that the first applicant had made statements at the interview of 7 November 2000 and that the second applicant made statements at the interviews of 16 November and 1 December 2000.
57. The court also found that “[i]t is not true that the statements were made under the influence of unlawful methods by the police. During the hearing the court has verified these arguments and they have not been confirmed”.
The Supreme Court of Justice dismissed the applicants’ appeal in cassation.
58. The relevant provisions of the Code of Criminal Procedure, in force at the time, read:
... Evidence obtained in violation of the present Code or not properly examined during the court hearing cannot constitute the basis of a court conviction or of other procedural documents.”
... The first questioning of an accused who has been taken into custody is to be conducted only in the presence of a defender, chosen [by the accused] or appointed ex-officio.”
The following shall serve as a ground for initiating a criminal investigation:
(1) declarations, letters from citizens;
... (6) the direct discovery by the investigating authority, the investigator, prosecutor, judge or court of the elements of a crime.
The proceedings may be initiated in cases where there is sufficient information regarding the crime committed.”
... In response to a declaration or a notification received, one of the following decisions shall be adopted within 3 days or, if additional verification is needed, within 15 days:
(1) to initiate a criminal investigation;
(2) to refuse the initiation of a criminal investigation;
(3) to forward the declaration or notification to the authority competent to deal with it.
The decision taken under paragraphs 3 and 4 above shall be brought to the attention of the person who made the declaration or notification”
In complex or voluminous cases the investigation may be carried out by several investigators. This is to be mentioned in the decision to initiate the criminal investigation or in a decision adopted for that purpose. ... In such cases the ... accused ... is to be informed of the names of all the participating investigators and his [or her] right to challenge any of them is to be explained to him [her].”
The place of detention on remand of persons against whom preventive measures have been applied shall be remand centres. In certain cases such persons may be detained in prisons, in police cells....
Persons detained on remand may be detained in police cells for up to three days. If they cannot be brought to a remand centre because of the considerable distance or the lack of appropriate transport facilities, they may be detained in police cells for longer periods, not exceeding 30 days.”
VIOLATED_ARTICLES: 3
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-84717
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: KOCH v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Javier Borrego Borrego;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova
TEXT: The applicant, Mr Ralf Koch, is a German national who was born in 1968 and lives in Nideggen in Germany.
In January 1998 police officers searched the applicant’s premises in order to seize evidence relating to an offence of unlawful assumption of authority allegedly committed by the applicant in December 1997.
In January 1999 the Aachen Public Prosecutor’s Office preferred an indictment against the applicant with the Aachen District Court (Amtsgericht).
In July 1999 police officers once again searched the applicant’s premises in order to seize evidence relating to three counts of falsification of documents allegedly committed by the applicant in December 1998, April 1999 and June 1999.
In November 2001 the Aachen Public Prosecutor’s Office preferred an indictment against the applicant with the Aachen District Court.
On 14 February 2003 the Aachen District Court, having joined to the proceedings three further indictments relating to criminal offences allegedly committed by the applicant in April 1999, November 2000 and April, May and June 2001, held a hearing during which the applicant was represented by the court-appointed counsel P.
Following the hearing, the Aachen District Court convicted the applicant of three counts of falsification of documents, one count of unlawful assumption of authority in conjunction with attempted coercion, falsification of documents, bodily injury and falsely casting suspicion on an innocent person and four counts of insult and sentenced him to one year and eight months’ imprisonment, suspended on probation. The District Court considered as mitigating factors that the applicant had made a confession and that some of the offences had been committed many years ago.
Parallel to these proceedings, public prosecution instituted separate proceedings against the applicant before the Düren District Court for falsification of documents allegedly committed by the applicant in 2002.
On 14 February 2003 the Düren District Court appointed the lawyer W. to represent the applicant during the proceedings before that court. As W. was unable to attend the hearing scheduled for 18 February 2003, the District Court, on that same date, absolved her from her duties.
On 18 February 2003 the District Court convicted the applicant, who was not represented by counsel, of falsification of documents and sentenced him to a fine of 2,000 euros.
On 12 May 2003 the Aachen Regional Court (Landgericht), in joint proceedings, rejected the applicant’s appeal against the judgments of 14 and 18 February 2003 as inadmissible on the ground that the applicant had failed to attend the court hearing held on 12 May 2003.
On 16 May 2003 the applicant applied for the reinstatement of the proceedings. He alleged that he had been unable to attend the court hearing as he had been admitted to intensive care from 11 to 13 May 2003 due to an emergency. In support of his allegations, he named his brother as a witness.
On 23 June 2003 the Aachen Regional Court rejected the applicant’s request. It noted that the applicant had failed to submit sufficient information as to the nature of his illness, the name of the treating practitioner or the hospital he had been admitted to, nor had he submitted sufficient evidence supporting his allegations.
On 30 June 2003 the applicant lodged an appeal. In support of his allegations, he submitted a letter by the Aachen University hospital dated 13 May 2003. According to the content of that letter, the applicant had been admitted to intensive surveillance after having complained about having suffered an electric shock while blow-drying his hair. The medical examination did not disclose any abnormalities.
On 5 September 2003 the Cologne Court of Appeal rejected the applicant’s appeal. That court considered that the applicant had failed to establish that he had been hindered to attend the court hearing through no fault of his own. The Court of Appeal considered that the hospital letter submitted by the applicant was exclusively based on the applicant’s own statement on the alleged electric shock incident and that the medical examination had not disclosed any abnormalities.
On 16 May 2003 the applicant lodged an appeal on points of law against the Regional Court’s judgment of 12 May 2003.
On 30 September 2003 the Cologne Court of Appeal (Oberlandesgericht) rejected the applicant’s appeal as inadmissible on the ground that the applicant had failed to submit the grounds for his appeal within the statutory time-limit of one month. This decision was served on the applicant on 8 October 2003.
On 9 October 2003 the applicant requested to be reinstated in the proceedings. He alleged that the court appointed counsel P. had promised him during a telephone conversation that he would submit the reasons for the appeal on points of law in due time. As means of evidence, the applicant submitted an affidavit given by his brother.
The applicant further requested the court to withdraw the court-appointed counsel P. and to appoint new counsel to submit the reasons for his appeal on points of law.
On 4 November 2003 the Court of Appeal informed the applicant that the case-file had been transferred to the Regional Court to rule on his request to appoint fresh counsel.
On 26 November 2003 the Aachen Regional Court rejected the applicant’s request to appoint fresh counsel on the ground that the applicant’s appeal on points of law lacked prospect of success.
On 8 December 2003 the applicant, represented by counsel W., requested the Court of Appeal to grant him a fair hearing and to re-open the appeal proceedings.
On 13 January 2004 the Cologne Court of Appeal rejected the applicant’s request to have the proceedings reinstated as being inadmissible. Having regard to the differing submissions made by counsel P., the Court of Appeal considered that the applicant had failed sufficiently to establish that P. had promised him that he would submit reasons for his appeal.
In any event, the applicant’s request was inadmissible as the applicant had failed to submit the grounds for his appeal, either through counsel or personally at the court’s registry, within the time-limit of one week set down in section 45 of the Code of Criminal Procedure (see relevant domestic law, below).
The Cologne Court of Appeal further rejected the applicant’s request to re-open the proceedings on the ground that the applicant’s right to a fair hearing had not been violated.
On 26 February 2004 the applicant lodged a constitutional complaint in which he complained about the conduct and the length of the proceedings before the criminal courts. On 21 May 2004 the Federal Constitutional Court, sitting as a panel of three judges, refused to accept his complaint for adjudication.
Article 2 § 1 of the German Basic Law in conjunction with the principle of the Rule of Law guarantees the right to expeditious proceedings. According to the settled case-law of the Federal Constitutional Court, the courts and the prosecuting authorities are called upon to draw the consequences of the length of proceedings at any stage of the proceedings. Their possibilities include inter alia the discontinuation of the proceedings pursuant to sections 153 and 153a of the Code of Criminal Procedure, the limitation of the proceedings according to sections 154 and 154a of the Code of Criminal Procedure or a reduction of the sentence (see, among others, the decision of 24 December 1983 (no. 2 BvR 121/83); the decision of 19 April 1993 (no. 2 BvR 1487/90); the decision of 21 January 2004, no. 2 BvR 1471/03, Reports of Chamber Decisions (BVerfGK) no. 2, pp. 239 et seq.; the decision of 21 June 2006, nos. 2 BvR 750/06, 752/06 and 761/06).
Section 341 [form and time limit]
“1. The appeal on points of law shall be filed with the court whose judgment is being contested either orally to be recorded by the registry or in writing within one week after pronouncement of judgment.
2. If pronouncement of judgment did not take place in the defendant’s presence, the time limit in respect of the defendant shall begin to run upon service of the judgment.”
Section 345 [time limit for stating grounds]
“1. The motions together with the grounds therefor shall be submitted to the court whose judgment is being contested no later than one month after expiry of the time limit for seeking the appellate remedy. If the judgment has not been served by then, the time limit shall commence upon service thereof.
2. The defendant may only do this in the form of a notice signed by defence counsel, or orally to be recorded by the court registry.”
Section 45 [request for reinstatement of the proceedings]
“1. The request for reinstatement of the proceedings shall be filed...within one week after cessation of the impediment (...).
2. The facts justifying the request shall be substantiated at the time the request is filed or during the proceedings on the request. The omitted act shall be undertaken within the time limit for filing the request (...).”


ITEMID: 001-99826
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF TURAN v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 8
JUDGES: András Sajó;Françoise Tulkens;Guido Raimondi;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria
TEXT: 5. The applicant was born in 1963 and lives in Budapest.
6. The applicant is a lawyer. In September 2004 the Buda Surroundings District Court ordered the search of her office, in application of section 149 subsections (4) and (5) of the Code on Criminal Procedure, and the seizure of documents concerning one of her clients, A.F., who had been suspected of having been engaged in illegal financial activities.
7. On 20 October 2004 the police searched the applicant's office. The search lasted from 9.45 a.m. until 12.55 p.m. in the presence of a public prosecutor. The applicant herself did not arrive on the premises before 10.25 a.m.
8. The Government claimed that until the applicant's arrival, another lawyer, Dr M., whose practice was in the neighbouring but entirely separate office, had been present. The applicant contended that Dr M. had not been present inside her office under search, nor had she represented her. According to the documents submitted, Dr M. was not formally appointed to defend the applicant's interests, nor did she sign the minutes of the search in such a capacity. Moreover, the parties' submissions diverged as to whether the police seized all the documents stored in the office or only those relating to A.F.
9. Subsequently, the applicant complained about the allegedly unlawful search and the indiscriminate seizure of all documents found.
10. On 5 November 2004 the Public Prosecutor's Office dismissed the applicant's complaint concerning the alleged unlawfulness of the search. The applicant appealed.
11. On 25 November 2004 the District Court ordered the restoration of part of the documents, which were unrelated to the case of the suspect.
12. On 19 May 2005 the Pest County Public Prosecutor's Office reversed the decision of 5 November 2004 and established that the search had been unlawful in that neither the applicant nor a representative had been present. It observed that Dr M. could not be considered a person appointed to represent the applicant's interests; she had not been appointed to this end by the authority in charge. The Office was however of the view that the lawfulness had been restored by virtue of the District Court's decision of 25 November 2004.
13. Under section 149 subsections (4) and (5) of the Code on Criminal Procedure, a house search (házkutatás) shall normally be carried out in the presence of the person concerned. In the absence of the latter or his/her representative, such a person shall be appointed to that end as can be assumed with sufficient certainty to represent appropriately the interests of the person concerned.
VIOLATED_ARTICLES: 8


ITEMID: 001-111433
LANGUAGEISOCODE: ENG
RESPONDENT: SRB
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: TATALOVIC AND DEKIC v. SERBIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;Françoise Tulkens;Guido Raimondi;Isabelle Berro-Lefèvre
TEXT: The applicants, Ms Darinka Tatalović and Mr Rajko Đekić, are Serbian citizens who were born in 1935 and 1932, respectively, and live in Belgrade. They were represented before the Court by Mr B. Mitrovski and Mr S. Jakovljević, lawyers practising in Belgrade.
The Serbian Government (“the Government”) were represented by their Agent, Mr Slavoljub Carić.
In 1948 the property which is at issue in this case was nationalised pursuant to the Nationalisation of Private Entities Act 1948, which provided for the nationalisation of all property belonging to foreign nationals.
On 2 July 1992 the applicants filed a property claim with the Belgrade Second Municipal Court against the local authorities. The applicants claimed that their predecessor had bought the disputed property in 1939 from B.B., a Czech citizen, and that therefore that property could not have been nationalised. The disputed fact in the case was the actual existence of the purchase contract, as it had allegedly been destroyed.
In the claim form, they assessed the monetary value of their claim at 6,000,000 “old dinars” (YUR - approximately 37,500 German marks (DEM) at the time).
On 30 March 1998 the court ruled in favour of the applicants. That decision was upheld by the Belgrade District Court on 31 March 1999.
At the request of the Attorney General of Serbia, on 6 December 2000 the Supreme Court of Serbia ("the Supreme Court") quashed the judgments of 30 March 1998 and 31 March 1999 and remitted the case for a retrial.
On 9 March 2001 the applicants extended their claim to the State.
On 18 November 2003 the Belgrade Second Municipal Court ruled against the applicants. That decision was upheld by the Belgrade District Court on 10 November 2004.
On 28 September 2006 the Supreme Court rejected the applicants’ appeal on points of law on the ground that they had failed to assess the monetary value of their claim in the claim form.
The Government did not dispute the facts submitted by the applicants. However, they provided additional information concerning the proceedings before the Supreme Court, as follows.
On 3 January 2007 the applicants applied for the reopening of the proceedings before the Supreme Court.
On 5 November 2009 the Supreme Court accepted their application and quashed its decision of 28 September 2006. At the same time, it decided on the merits of the applicants’ appeal on points of law and dismissed it as manifestly ill-founded.
The applicants’ representative was served with the Supreme Court’s decision on 2 March 2010.