ITEMID: 001-58783
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF L. v. FINLAND
IMPORTANCE: 3
CONCLUSION: No violation of Art. 8;No violation of Art. 13;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings;Costs and expenses partial award - domestic proceedings
JUDGES: Georg Ress
TEXT: 12. The applicant father, who has two daughters (P., born in 1985, and S., born in 1991), married the mother of his children, E., on 21 September 1991. E. became mentally ill after the birth of their second child, S., and was hospitalised several times. Since at least 1985 there were contacts between the family and the social welfare authorities.
13. In the beginning of 1992 the parents were planning a divorce. On 20 January 1992 the Social Director of the City of K. placed the children in provisional public care, principally suspecting that P. had been sexually abused and supposing that S. was in serious danger of being subjected to similar abuse. P. was admitted for observation in a child psychiatric clinic and S. was placed in a foster family. The applicant father and E. were opposed to the public care order.
14. On 30 January 1992 the Social Welfare Board (sosiaalilautakunta, socialnämnden) of K. upheld the provisional public care orders. It also restricted the parents’ right of access to P. to two weekly visits at the hospital and decided not to disclose S.’s whereabouts. The parents, represented by the Public Legal Adviser (yleinen oikeusavustaja, allmänna rättsbiträdet) of K., appealed to the County Administrative Court (lääninoikeus, länsrätten) of Vaasa.
15. On 9 March 1992 the social and health care authorities informed the applicant father and E. in a meeting at the hospital that the child psychiatric investigation did not result in any finding that P. had been subjected to sexual abuse. The doctor’s statement concerning the result was dated 12 March 1992.
16. On 19 March 1992 the Social Welfare Board formally decided to place the children in public care. The Board considered that the parents were incapable of providing them with the stimulation necessary for their growth and development as well as with basic security. It noted that the mother was suffering from mental illness and that there were problems in the parents’ relationship. P. had been used as an instrument in conflicts arising between the parents and the applicant father’s adoptive parents. Her development did not correspond to that of the average for her age and it seemed that the child was at a stage of her development where it was crucial that she should be attached to stable and secure persons without risking her further development. The younger daughter, S., was found to be in a similar situation even though her development was still at an earlier stage. The parents appealed, again represented by the Public Legal Adviser.
17. P. was later placed in the same foster home as S.
18. On 28 June 1992 the parents were allowed to see their children for the first time after their placement in the foster home.
19. On 17 August 1992 the County Administrative Court rejected the parents’ appeal against the public care order of 19 March 1992. It rejected their request for an oral hearing. The parents had stated that they had given up their plans to divorce and would be more motivated to co-operate with the Social Welfare Board. The court nevertheless found that the deficiencies in the children’s care and the other home conditions risked jeopardising their development seriously.
20. On 17 August 1992 the County Administrative Court also rejected the parents’ appeal against the Social Welfare Board’s decision of 30 January 1992 to restrict their access to P. and not to disclose S.’s whereabouts.
21. The parents, still represented by the Public Legal Adviser, appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) against the County Administrative Court’s confirmation of the care orders. No further appeal lay open to them in respect of the access restriction and the non-disclosure of the children’s whereabouts. On 8 January 1993 the Supreme Administrative Court found no reason to amend the County Administrative Court’s decision of 17 August 1992.
22. On 3 December 1992 the Social Welfare Board prolonged the access restriction until 31 May 1993. It agreed to three two-hour long supervised meetings between the children and the parents. The Board prohibited all access between the children and their grandparents until 30 April 1993, considering that these contacts had been disturbing the children’s life in their foster family as well as P.’s schooling. The Public Legal Adviser advised the applicants not to challenge the access restriction and prohibition.
23. On 4 May 1993 the Social Welfare Board prolonged the prohibition on access between the children and the grandparents until 31 December 1993. The Board again considered that the grandparents’ behaviour had disturbed the children’s life in the foster home. It also noted their strong resistance against the children’s placement in public care.
24. On 8 June 1993 the Social Welfare Board prolonged the restriction on access to the children by the parents until 31 May 1994. The children and their parents were to meet four times in supervised conditions in the foster home. The Board again referred to the need to guarantee the children a peaceful growth environment and the need to ensure the foster parents’ work peace.
25. On 25 October 1993 the parents requested permission that the access restriction be alleviated and that they be allowed to keep the children over Christmas 1993. On 24 November 1993 the Social Welfare Board maintained the access restriction imposed on 8 June 1993 and prolonged it until 31 December 1994. From June to December 1994 the children and their parents were to meet three times under supervision.
26. The applicant father appealed to the County Administrative Court, requesting, inter alia, that an oral hearing and an inspection be held; that the Court should obtain P.’s own opinion in regard to the access arrangements; that the access restrictions be revoked; and that the Board be ordered to state clearly which concrete conditions in his home needed to be changed and to order the Board to support his efforts to change them. The Social Welfare Board submitted that the access restrictions had been necessary. It referred to, inter alia, an incident in August 1993, when the applicant father had forced P. to read statements written by the grandparents and which had mentioned the foster family in negative terms. The foster parents had told P. to call her parents but the telephone number of the foster family had had to be changed after they had received certain inappropriate calls.
27. On 14 December 1993 the Social Welfare Board prolonged the prohibition of access between the children’s grandparents until 31 December 1994. The grandmother fell seriously ill and was exceptionally allowed to visit the children in their foster home for three hours on 23 December 1993 under supervision.
28. The grandparents appealed to the County Administrative Court, requesting, inter alia, that an oral hearing be held; that the court should obtain P.’s own opinion in regard to the access arrangements; and that the access restrictions be revoked.
29. In its submissions of 28 February 1994 the Social Welfare Board maintained that the access prohibition had been necessary on account of the grandparents’ resistance both against the public care and the activities of the officials of the Board. The Board annexed copy letters and cards which the grandparents had sent to the children and which mentioned the foster family in negative terms. In the Board’s opinion, the grandparents’ resistance had influenced the children and was capable of jeopardising their positive development. Other close relatives as well as friends of the children had pursued the children’s interests and these contacts had been in accordance with the children’s own opinion.
30. In the beginning of 1994 the parents moved apart and the applicant father moved back to his adoptive parents’ home.
31. On 7 June 1994 the County Administrative Court rejected the applicant father’s requests. The court found that there was no need for a hearing or an inspection. It also noted that P.’s opinion had already been obtained and that the applicant father’s negative feelings towards the public care situation and the children’s placement in a foster home had been transmitted to the children during his visits, thereby clearly jeopardising their development and rendering the access restrictions necessary. No appeal lay against the decision.
32. On 7 June 1994 the County Administrative Court also rejected the grandparents’ requests in their entirety. It found that there was no need for a hearing or an inspection and that the grandparents’ negative feelings towards the public care situation and the children’s placement in a foster home had been transmitted to the children, thereby clearly jeopardising their development and rendering the access prohibition necessary. No appeal lay against the decision.
33. In response to a petition lodged by the parents, the Deputy Parliamentary Ombudsman (eduskunnan apulaisoikeusasiamies, riksdagens biträdande justitieombudsman), on 17 June 1994, found that the children’s placement in public care had been justified. In general terms, she nevertheless underlined that the grounds relied upon in a public care order should be factual and not speculative. For instance, sexual abuse of the child could not be relied upon as a fact in the absence of any expert findings corroborating such a statement. Although the issuing of a public care order could well be justified already on the basis of such suspicions, the grounds relied upon should refer to the symptoms from which the child has been found to suffer. As for the access restrictions, the Deputy Ombudsman stressed, again in general terms, that the Social Welfare Board must actively support access arrangements between the children and both their parents and others who are close to them. Such access should not hamper the foster family’s daily work. The access arrangements should normally be agreed upon when the public care plan was being drawn up. If an agreement could not be reached, an appealable decision was to be made and any restrictions were to be limited in time.
34. On 5 September 1994 the applicant father requested that the Social Welfare Board revoke the public care orders. Alternatively, both applicants requested that the access restriction and prohibition be alleviated. On 29 November 1994 the requests were rejected. The Social Welfare Board ordered that the parents could see the children in their foster family on five occasions during 1995. It prolonged the prohibition of access between the children and the grandparents until 31 December 1995. In his appeal the applicant father requested, inter alia, an oral hearing.
35. In the case concerning the justification of the care order the County Administrative Court, on 25 April 1995, rejected the applicant father’s appeal without holding an oral hearing. As for the access restriction, the court ordered that from 1 May to 31 December 1995 he could see the children once a month in their foster home. It rejected the remainder of that appeal without holding an oral hearing. Finally, the court rejected the grandparents’ appeal.
36. On 8 December 1995 the Supreme Administrative Court rejected the applicant father’s request for an oral hearing and upheld the County Administrative Court’s decision in regard to the justification of the care order. It declined to examine his appeals in regard to the access restriction and prohibition.
37. On 19 December 1995 the Social Welfare Board rejected the grandparents’ further request for a revocation of the access prohibition and prolonged that prohibition until 30 April 1996. The grandparents appealed, requesting, inter alia, an oral hearing. On 16 April 1996 the County Administrative Court rejected the appeal without holding an oral hearing.
38. On 21 February 1996 two social welfare officials drew up a care plan. It mentions the first applicant’s wishes, indicates measures to be resorted to for the benefit of the children, i.e. that the children be supported to find activities corresponding to their age and talents and that, if need be, they be provided with individual therapy. It states that the care will continue until further notice since conditions for its termination are not, for the time being, at hand. The applicant father objected to the plan, considering that it did not comply with domestic law. It did not, for instance, specify the conditions in his home which should be improved before the care orders could be revoked. Instead, it stated that the public care order should be kept in force for the time being, as there were no grounds to revoke the order.
39. In the spring of 1996 the parents divorced.
40. On 7 May 1996 the Social Welfare Board restricted the grandfather’s access to the children.
41. P. was psychologically examined by Dr L. between 12 August and 6 September 1996. The doctor’s statement, dated 29 October 1996, stated, inter alia, that P. had clearly said that she was not willing to meet her biological parents as often as the visits took place at the time. According to the doctor’s statement, P. felt especially nervous about the applicant father and the possibility that he might lose his temper. She did not feel nervous about her mother and she could meet her mother in accordance with the practice applied at that time. It was also stated that P. was not at all willing to meet the parents of the applicant father, because they wrote her letters which she was not able to understand and criticised the foster parents. According to the statement, the examination confirmed the suspicions of sexual abuse.
42. In 1996 the applicant father met the children once a month.
43. On 3 December 1996 the Social Welfare Board prohibited the grandparents’ access to the children until the end of 1998 and decided that the applicant father could see the children in their foster family four times a year in 1997 and 1998. The applicants appealed to the County Administrative Court which, on 17 March 1997, upheld the Social Welfare Board’s decisions, without holding an oral hearing as requested by the applicants. The County Administrative Court’s decision not to hold such a hearing was reasoned as follows:
(translation from Finnish)
“The County Administrative Court has earlier - 17 August 1992, 7 June 1994, 25 April 1995, 16 April 1996 and 26 September 1996 - considered the public care and restriction of the right of access in respect of the children. Later P. requested that the meetings be made less frequent. The meetings take place under supervision, and a closer examination of the suspected sexual abuse, which possibly took place before P. was taken into care, is not necessary in this connection. An oral hearing would most likely not bring to light any new evidence affecting the matter, which is why an oral hearing is manifestly unnecessary.”
44. On 2 January 1997 the applicants’ representative Ms Suomela made a complaint to the National Authority for Medicolegal Affairs (terveydenhuollon oikeusturvakeskus, rättskyddscentralen för hälsovården) concerning the examinations of P. by child psychiatrist H.L. and psychologist P.L. in the Central Hospital of S.
45. The access restriction was discussed with the children on 26 November 1998 during a home visit at the foster family’s home in the presence of two psychologists and two social workers. According to the Government, P. clearly expressed her wish that the meetings of the children with the applicants be organised in the same way and at the same frequency as previously.
46. On 16 December 1998 the Social Welfare Board again ordered that the applicant father could see the children in their foster family four times a year until 31 December 2001. This decision was reasoned as follows:
(translation from Finnish)
“P. and S., who are placed in a foster family, must be ensured a peaceful living environment.
The medical examination carried out in the child psychiatric clinic in the summer of 1996 revealed that [the applicant father] had abused P. sexually before she was taken into care. [He] has himself denied the accusations and thus tried to discredit the information given by his child. P. has said that she is nervous about the meetings and that she is happy with the present practice concerning the meetings, taking place four times a year under supervision in the home of the foster family. She has also said that she is not willing to visit her father at his present home. More frequent meetings, making the child nervous, endanger her development.”
47. Also on 16 December 1998 the Social Welfare Board prohibited the grandparents’ access to the children until the end of year 2001. The decision is reasoned as follows:
(translation from Finnish)
“P. and S., who are placed in a foster family, must be ensured a peaceful living environment, and the foster family must be able to look after them without disturbance.
More frequent meetings would not be in the best interest of the children, because grandparents still strongly object to the placement of the children in a foster family, and have expressed this in their letters to the children. The grandmother has also scared the children during an occasional meeting on 7 November 1998 by saying that the children had been kidnapped. The behaviour of the grandparents make the children confused and thus endangers their development.
P. said, in the child psychiatric clinic of the Central Hospital of S. in the summer of 1996 that [the second applicant] had abused her sexually before she was taken into care, and had also otherwise made her scared. P. has said that she does not want to see [the grandmother] and [the second applicant] at all.”
48. The applicants have not appealed against the Social Welfare Board’s decisions of 16 December 1998.
49. On 25 February 1999 the National Authority for Medicolegal Affairs, having obtained experts’ statements in this matter, rejected the applicants’ representative’s complaint of 2 January 1997. The conclusions of the Authority concerning the examinations in 1992 and, respectively, in 1996, are as follows:
(translation from Finnish)
“As regards the medical examination of [P.] which took place in the Central Hospital of S. in 1992, the National Authority for Medicolegal Affairs finds, in the light of the evidence available, that the examination in the hospital was justified. The child psychiatric examination since January 1992 was justified and the examination was mainly well organised.
The child psychiatric examination of [P.] both in the ward and in the clinic was to a large extent carried out with the usual methods of assessing extensively and profoundly the overall psychological development of the child.
On the whole the psychological examination of [P.] carried out by P.L. was extensive and carried out professionally. The methods used were appropriate. The investigation carried out does not show that the examination would not have been based on the null hypothesis.
However, the special question of possible sexual abuse of the child was not sufficiently taken into account in the examination of [P.] between 27 January and 5 March 1992, which is shown by the fact that there are relatively few patient documents concerning the examination in the ward and by the psychologist.
In the light of the evidence, the recommendation and the conclusions contained in the opinion given by Senior Physician H.L. on 12 March 1992 to the Social Welfare Board of K., can be considered appropriate. ...
...In the light of the evidence, the National Authority for Medicolegal Affairs firstly notes that observations had been made on the meetings between [P.] and her parents already in 1992 when she was examined in the ward. In the opinion of Senior Physician H.L. the finding of sexual abuse is not based on the symptoms of [P.] but on the information given by her. However, in this respect the reasons given in the opinion of H.L. could have been expressed somewhat more clearly.
It was not possible to video-tape or record in some other way the interview of [P.] concerning sexual abuse, because such information was not expected beforehand. ...
... The child psychiatric examination of [P.] was initiated in 1996 because of reasons other than suspicion of sexual abuse, as has been mentioned above. Therefore the examination was a usual psychological examination. Because it was impossible to predict in what direction the examination would turn, it was not possible at an early stage to take into account her rights or the consequences of information given by her, as regards the examination of sexual abuse. The observations given by the Psychologist P.L. to the National Authority for Medicolegal Affairs reveal that she had later informed [P.] in detail of what kind of measures would be taken as a result of the information given by her.
In the light of evidence the National Authority for Medicolegal Affairs in the first place notes that the clinical examination of [P.] carried out by a doctor on 5 September 1997 was justified and adequately documented.
The psychological examination of [P.] carried out by Psychologist P.L. was extensive and on the whole professional. The methods of examination used were appropriate.
According to the evidence the examinations were carried out by Senior Physician H.L. and Psychologist P.L. objectively, and there are no indications of pressure by child welfare authorities in respect of the results of examination.
[P.] has been examined for a long time in the ward of the Central Hospital of S., and the examination included a very profound child psychiatric examination on the basis of which it can be concluded that the recommendations and conclusions made by Senior Physician H.L. were also appropriate.
On these grounds the National Authority for Medicolegal Affairs finds that the complaint by Anu Suomela, Master of Social Sciences, does not give reason for further measures.”
50. The decision of the National Authority for Medicolegal Affairs cannot be appealed against.
51. S. was heard on 17 March, 21 April and 4 May 1999 by a psychologist in the presence of a social welfare official. According to a statement, made on 24 May 1999 by the psychologist and social welfare official, S. was a happy little girl who openly talked about her life. She was found to be at normal development level of her age. She seemed to be attached to her foster parents and did not remember the time when she lived with her biological family. She found her mother’s visits to be pleasant but felt nervous about her father’s visits.
52. The care plan was reviewed on 25 May 1999 by the social welfare authorities. No changes were made to the access regulations.
53. Section 1 of the Child Custody and Right of Access Act (laki lapsen huollosta ja tapaamisoikeudesta, lag ang. vårdnad om barn och umgängesrätt 361/1983) defines what is meant by child custody and what is required from the custodian. According to its first paragraph, the objectives of custody are to ensure the well-being and the balanced development of a child according to its individual needs and wishes, and to ensure for a child close and affectionate relationships in particular with its parents.
54. The Child Custody and Right of Access Act requires both the parents and authorities to ascertain the wishes and views of the child when making and executing a decision concerning a child, if this is possible in view of the age and stage of development of the child (Sections 4.2, 8, 9.4, 11, 34.1 point 3; and Sections 34.2, 39.1, 39.2 and 46.2). Court decisions concerning the custody and access of a child cannot be executed against the will of a child who has attained the age of 12.
55. Also according to the Child Welfare Act (lastensuojelulaki, barnskyddslag 683/1983 as amended by Act 139/1990), a child who has attained the age of 12 is given an independent right to be heard in most important child welfare decisions related to his or her person and to appeal therefrom.
56. In situations where the child does not live with its parents or where they are separated because of need of protection or other corresponding reason, the child has the right to keep up personal relations and contacts with its parents. However, this right can be limited on specific grounds and by certain procedures prescribed by law, for example, because of a danger and threat caused by contacts or on the basis of the best interests of the child (Section 2 of the Child Custody and Right of Access Act; Sections 19.2, 24 and 25 of the Child Welfare Act; Articles 9 and 10.2 of the Convention on the Rights of the Child).
57. According to Section 1 of the Child Welfare Act, a child is entitled to a secure and stimulating growing environment and to a harmonious and well-balanced development, and has a special right to protection. The objective of the Child Welfare Act is that a child will in all circumstances get such care and upbringing as is required by the Child Custody and Right of Access Act.
58. In case the parents or custodians of the child are not able to provide the child with sufficiently secure conditions for its growth and development, the Social Welfare Board and its office holders shall take the necessary measures in accordance with the Child Welfare Act. These measures include the assistance in open care referred to in Sections 12 to 14 and the duty to take a child into care and provide substitute care referred to in Section 16.
59. According to Section 13.1 of the Child Welfare Act (as amended by Act 139/1990), when the need for child welfare is caused primarily by inadequate income, deficient living conditions or lack of housing, or when these factors constitute a serious obstacle to the rehabilitation of a child and family, or a young person in the process of becoming independent who had been a social welfare client before attaining the age of 18, local authorities must provide adequate financial support without delay, and correct deficiencies in housing conditions or provide housing according to need.
60. Assistance in open care referred to in Section 13.2 of the Child Welfare Act includes general assistance in accordance with the Social Welfare Act (sosiaalihuoltolaki, socialvårdslag 710/1982). In addition to general assistance, special forms of assistance are mentioned: lay helper or supporting family; adequate therapy; holiday and recreational activities; and assisting a child in his or her education and training, in job and home finding, and in his or her leisure activities and other personal needs, by providing financial and other support. The assistance shall be provided in co-operation with the child or young person and its parents or other persons caring for them.
61. According to Section 16 of the Child Welfare Act, the Social Welfare Board shall take a child into care and provide substitute care for him or her if (a) the child’s health or development is seriously endangered by lack of care or other conditions at home, or if the child seriously endangers his or her health and development by abuse of intoxicants, by committing an illegal act other than a minor offence, or by any other comparable behaviour, (b) the measures of assistance in open care are not appropriate or have proved to be inadequate; and (c) substitute care is considered to be in the best interests of the child.
62. According to Section 9.2 of the Child Welfare Act, substitute care shall be provided without delay where it is needed and is in the best interests of the child.
63. If a child is in imminent danger or otherwise in need of an immediate care order and substitute care, the Social Welfare Board may take him or her into care without submitting the decision to the County Administrative Court for approval (Child Welfare Act, Section 18).
64. An emergency care order shall expire within 14 days of the decision unless it is taken up as a normal care order referred to in Section 17 during the said period. Such a care order must be handled within 30 days, or on special grounds within 60 days of the emergency order. A decision on emergency care can be appealed in the normal way.
65. Care order in accordance with Section 16 of the Child Welfare Act terminates when the child attains the age of 18 or concludes marriage. Public care shall be terminated earlier where the preconditions for the termination of care exist.
66. According to Section 20 of the Child Welfare Act, the Social Welfare Board shall discharge a child from care, when the need for care or substitute placement referred to in Section 16 no longer applies, unless such discharge is clearly contrary to the best interests of the child.
67. Taking into care differs from adoption in so far as the parents are able to keep limited custodial rights and guardianship responsibilities. Taking a child into care also maintains contact between the child and the parents as well as relationships under family law such as statutory succession, including the right to a family name and to inheritance.
68. On the custody of a child in care Section 19.1 of the Child Welfare Act stipulates as follows:
“When the Social Welfare Board takes a child into care, it shall be empowered to decide on the child’s care, upbringing, supervision, other welfare, and residence. The Board shall, however, make every effort to co-operate with the parents or other custodians of the child.”
69. Through a decision to take a child into care, the Social Welfare Board automatically takes over the competence to decide on the contacts between the child and its parents and other persons close to the child (Section 19.2 of the Child Welfare Act).
70. According to Section 24 of the Child Welfare Act, a child who is in substitute care shall be ensured the continuous and secure human relations that are important for his or her development. The child is entitled to meet his or her parents and other persons close to him or her and to keep in touch with them. The Social Welfare Board shall support and facilitate the child’s access to his or her parents and to other persons close to him or her.
71. According to Section 25 of the Child Welfare Act, the Social Welfare Board or the director of a residential home may restrict the right of access of a child in substitute care to its parents or other persons close to him or her, as stipulated in Decree, if (a) such access clearly endangers the development or safety of the child; or if (b) such a restriction is necessary for the safety or security of the parents, or the children or staff in the residential home. On the above-mentioned grounds, the Social Welfare Board may decide that a child’s whereabouts shall not be disclosed to its parents or custodians while the child is in care.
72. According to Section 25 of the Child Welfare Act and Section 9 of the Child Welfare Decree (lastensuojeluasetus, barnskyddsförordning 1010/1983), a decision concerning the restriction of the right of access shall be valid for a specified time, and it shall mention the persons whose rights are restricted. In addition, the decision shall mention what kind of contacts are restricted by the decision and to what extent the restriction is in force.
73. A decision to restrict the right of access restricts the child’s right to meet its parents and other parents close to the child. Such close persons to the child are the child’s custodian or other legal representative, members of family and those persons who have in reality kept in touch with the child before and when the child has been in care.
74. A care plan shall be made for each case of family-orientated and individual child welfare, unless the matter under consideration requires only temporary counselling or guidance. This plan must be adjusted when necessary.
75. In case of a child taken into care (Section 16 of the Child Welfare Act) or a child placed in residential care as assistance in open care (Section 14 of the Child Welfare Act) the care plan shall mention (a) the purpose and objectives of the placement; (b) what kind of special support will be organised for the child, for the persons in charge of the child’s care and upbringing and for the child’s parents; (c) how the child’s right of access to its parents and other persons close to the child is going to be organised; and (d) how after-care is going to be organised.
76. According to Section 4 of the Child Welfare Decree, the care plan shall be elaborated in co-operation with those involved.
77. According to Section 4 of the Social Welfare Act, a Social Welfare Board, with several members elected by the municipality, shall be responsible for providing social welfare in its area, and shall be charged with the responsibilities assigned to social welfare boards in other Acts.
78. According to Section 12 of the Social Welfare Act, the decision-making authority of a municipal Social Welfare Board can be delegated to officials subordinate to the board, with the exception of decisions involving compulsory welfare measures for an individual.
79. According to Section 17.2 of the Child Welfare Act, a decision made by the Social Welfare Board on taking a child into care or placing him in substitute care, must be submitted within thirty days to the County Administrative Court for approval, if a child who has attained the age of 12 or his or her custodians oppose the measure or if the hearing required by Section 17.1 of the Act could not be arranged.
80. According to Section 36, decisions concerning taking into care or placement in substitute care can be appealed to the County Administrative Court within thirty days of notification of the decision. During that time, such an appeal may also be lodged with the local Social Welfare Board which shall forward it to the County Administrative Court together with its own statement within fourteen days. The submission and the appeal shall in this case be dealt with and decided at the same time.
81. According to Section 37.1 of the Child Welfare Act, appeals against a decision on care orders, on placement in substitute care, or on termination of care, made by the County Administrative Court in pursuance of this Act, may be lodged with the Supreme Administrative Court.
82. According to Section 37.2 of the Child Welfare Act, other decisions than those stated in subsection 1, relating to family-oriented and individual child welfare rendered by the County Administrative Court in pursuance of the Child Welfare Act, cannot be appealed.
83. According to Section 35.2 of the Child Welfare Act, a child who has attained the age of 12, his or her parents, his or her custodians, and the person responsible for his or her care and upbringing or who was responsible immediately prior to the case in question, may appeal in cases concerning the taking of a child into care, placement in substitute care or termination of the care.
84. A decision made by an official subordinate to a municipal Social Welfare Board shall not be subject to ordinary process of appeal, but a person challenging such a decision shall have under the Administrative Procedure Act (hallintomenettelylaki, lag om förvaltningsförfarande 598/1982) the right to have the decision reviewed by a municipal Social Welfare Board within fourteen days of having been informed of the decision. The Social Welfare Board shall deal with the matter without delay. A decision made by the Social Welfare Board can be appealed to the County Administrative Court.
85. According to Section 46 of the Social Welfare Act, a decision made by the Social Welfare Board is subject to appeal to a County Administrative Court within thirty days of the service of the decision. Certain decisions by the County Administrative Court can be appealed to the Supreme Administrative Court.
86. When a decision of an authority can be appealed, the authority in question shall attach to its decision the information and instructions concerning the right of appeal.
87. According to Section 47 of the Social Welfare Act, a decision made by a municipal Social Welfare Board is enforceable regardless of appeal if (a) the decision requires immediate implementation; or (b) for reasons due to the arrangement of social welfare, the enforcement of the decision cannot be delayed; and (c) when the Social Welfare Board has ordered the decision to be enforced at once.
88. When an appeal has been lodged, the appellate authority can order that the decision not be enforced or that the said enforcement be suspended.
89. According to Section 38.1 of the Administrative Judicial Procedure Act (hallintolainkäyttölaki, förvaltningsprocesslag 586/1996), which entered into force on 1 December 1996), a County Administrative Court shall conduct an oral hearing if a private party so requests. The same applies to the Supreme Administrative Court where it is considering an appeal against the decision of an administrative authority. The oral hearing requested by a party need not be conducted if the claim is dismissed without considering its merits or immediately rejected or if an oral hearing is manifestly unnecessary in view of the nature of the matter or for another reason.
90. According to the Child Custody and Right of Access Act, a person under 18 years of age is legally incompetent (minor). A child who has attained the age of 12 is entitled to be heard in child welfare cases as stipulated in Section 15 of the Administrative Procedure Act; he or she is also entitled to demand the social services and other support mentioned in Section 13.
91. Section 17.1 of the Child Welfare Act determines the parties to be heard in matters concerning taking a child into care, placing a child in substitute care and termination of care. According to this Section, the following persons have the right to be heard in accordance with Section 15 of the Administrative Procedure Act: (a) the custodian of the child, (b) a biological parent who is not the custodian of the child, (c) a person currently in charge of the child’s care and upbringing or who was in charge immediately prior to the case in question, and (d) a child who has attained the age of 12. They will also have to be notified of a decision concerning taking a child into care and termination of care following the procedure for special notification. The authorities also have, when necessary, an obligation to inform them of possibilities of appeal.
92. Section 15, subsection 1, of the Administrative Procedure Act lays down a general obligation to hear the parties. Before any decision is made the party shall be afforded an opportunity to reply to the claims put forward by others as well as to any evidence that may affect the decision.
93. The County Administrative Board, in the capacity of a State authority on regional level, has the general competence to supervise the activities of municipalities. Also, following a procedural appeal, the County Administrative Board (lääninhallitus, länsstyrelsen) can investigate whether a local authority has acted in accordance with law.
94. In addition, the Ministry of Social Affairs and Health supervises and directs, in its capacity as the highest authority in social welfare and health matters, the activities of municipalities and, when necessary, also the activities of the County Administrative Board in child welfare. Appeals concerning individual cases addressed to the Ministry of Social Affairs and Health are sent to the County Administrative Board which decides on the matter as the first instance.
95. The Parliamentary Ombudsman and the Chancellor of Justice (oikeuskansleri, justitiekansler) have the competence to supervise the legality of the measures taken by any authorities.
96. According to the Act on National Authority for Medicolegal Affairs (laki terveydenhuollon oikeusturvakeskuksesta, lagen om rättskyddscentralen för hälsovården 1074/1992), the National Authority for Medicolegal Affairs is subordinate to the Ministry of Social Affairs and Health. Its task is to see to the appropriateness of citizens’ health care services by, inter alia, monitoring the activities of health care professionals, according to the Act on Health Care Professionals (laki terveydenhuollon ammattihenkilöistä, lagen om yrkesutbildade personer inom hälso- och sjukvården 559/1994). The Authority receives information about inadequacies observed in professional practice for example from patients’ notifications and complaints, the authorities, the Social Insurance Institution, pharmacies, employers, and courts of law. The Authority has at its disposal approximately 250 permanent specialists who represent expertise in the various fields of medicine.
97. The Authority gives administrative guidance to the health care professionals in the form of calling a health care professional’s attention to some feature in his or her actions, or presenting him or her with a caution. The Authority can also issue a professional a written warning, restrict a person’s right to practise the profession, or entirely revoke such a right.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 13
8


ITEMID: 001-106409
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: TARKHOVA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre
TEXT: The applicant, Mrs Tetyana Valentynivna Tarkhova, is a Ukrainian national who was born in 1962 and lives in Kyiv.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 15 April 1996 the applicant married Sh. (a Polish national). On 7 July 2000 their son T. was born. The family resided in Poland. According to the applicant, T. is a Ukrainian national. However, according to a letter dated 13 May 2011 from the Ministry of Justice of Ukraine, he is also a Polish national.
In June 2008 the applicant and T. went on holiday to Ukraine with Sh.’s consent. They were supposed to return by the middle of August 2008. However, on 30 August 2008 the applicant informed Sh. that they were not returning.
On 12 March 2009 the Ministry of Justice of Ukraine lodged an application on behalf of Sh. with the Solomyansky District Court in Kyiv, seeking the return of the child to Poland under the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (“the Hague Convention”).
On 9 July 2009 the court rejected the Ministry’s claim. On 19 November 2009 the Kyiv City Court of Appeal quashed this decision and remitted the case for fresh consideration.
On 11 February 2010 the Solomyansky District Court refused to institute civil proceedings concerning a claim brought by the applicant for custody and maintenance of T., referring to Article 16 of the Hague Convention which precludes the relevant authorities from consideration of such claims before deciding on a child’s return. This decision was final and not subject to appeal.
On 24 February 2010 the court ordered T.’s return to Poland.
The applicant contested the order, alleging that Sh. had not provided financially for basic family needs, including food and medical treatment. She asserted that in Ukraine she had created a proper environment for herself and her son, who had become well integrated into the Ukrainian school system and who objected to his return to Poland. She referred to Article 13 of the Hague Convention.
The representative of the Solomyansky District State Administration Childrens’ Services Department (Служба у справах дітей Солом’янської районної у м. Києві державної адміністрації) agreed that the child had been unlawfully held on the territory of Ukraine, but that his mother had provided him with all which was necessary for the child’s development. The child was very emotionally attached to his mother and did not want to change his place of residence.
The court found that the applicant had not provided convincing evidence that Article 13 of the Hague Convention was applicable to her situation. On the contrary, there was sufficient documentary proof that Sh. had taken care of his child (including Sh.’s salary slips, a note from T.’s school in Poland that Sh. had taken an active part in his son’s school life, and so forth). The materials submitted by the applicant about the child’s living conditions in Ukraine had simply confirmed that the applicant had been properly performing her duties as a mother. T.’s preference to stay in Ukraine could not by itself constitute a basis for legalising his abduction, particular regard being had to his young age. The court also noted that Sh. had guaranteed financing the return of both T. and the applicant to Poland, where they had permanently resided before T.’s abduction. Moreover, the child’s return to Poland would be in his best interests, which included the need to ensure that he was developing in conditions allowing him free linguistic and ethnic self-identification in the future. The court finally noted that the applicant would be able to lodge a claim seeking to have the child’s residence changed via court proceedings in Poland.
On 19 May 2010 the Kyiv Regional Court of Appeal upheld the District Court’s judgment. The court found that the first-instance court had adopted a lawful decision. In particular, the applicant’s statements that Sh. had insufficient income had not been confirmed by the case-file materials.
On 26 July 2010 the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal in cassation.
The applicant’s further attempts to review the above decisions in the light of newly discovered circumstances were to no avail.
The relevant provisions of the Hague Convention can be found in the decision in the case of Levadna v. Ukraine (dec.) (no. 7354/10, 27 April 2010).


ITEMID: 001-90101
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF TRAPEZNIKOVA v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Remainder inadmissible;Violation of Art. 2 (procedural aspect);Violation of Art. 6-1;Violation of P1-1
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1940 and lives in Stavropol.
6. At the material time the applicant and her husband lived in a three-room apartment in a block of flats at 4 Prospekt Revolyutsii in the city of Grozny, the Chechen Republic. The applicant submitted a housing warrant (ордер) confirming her right to live in the apartment. She did not submit any documents proving that she had a title to the flat.
7. In early October 1999 a military operation was launched in the territory of the Chechen Republic.
8. According to the applicant, on 4 January 2000 the block of flats at 4 Prospekt Revolyutsii was hit by a missile fired by the Russian armed forces during an attack on Grozny. The applicant’s flat and all her belongings were destroyed. It does not appear that the applicant witnessed the destruction.
9. On 6 January 2000 the applicant, her husband and other residents were sheltering from a bombardment in the basement of their block of flats. At around 10 p.m. an intoxicated man armed with a machine gun came down to the basement and started shooting, with the result that the applicant’s husband and three other persons were killed. The applicant managed to escape. According to her, the name of the man who shot her husband was Khalid. He had lived for some time in their block of flats and during the bombings she had met him in the basement on several previous occasions.
10. On the next day the applicant buried her husband’s body and the bodies of the others killed in the shooting in the courtyard. It does not appear that an autopsy was performed or any photographs taken.
11. On 21 June 2000 a local registry office certified the death of the applicant’s husband. On the same date a housing authority issued the applicant with a certificate confirming that her flat “was destroyed and burnt completely during the military actions on 4 January 2000”. The certificate contained no other information relating to the destruction. The applicant did not submit any documents which would indicate the cause of the destruction of the block of flats at 4 Prospect Revolutsii, or any photographs of the site of the destruction.
12. According to the Government, the applicant’s written complaint concerning her husband’s murder was received by the Zavodskoy District Department of the Interior of Grozny on 17 February 2000. On 27 February 2000 the acting prosecutor of Grozny opened an investigation into the case under Article 105 (2) (aggravated murder) of the Russian Criminal Code. The case file was assigned the number 12005.
13. On the same day the applicant was granted the status of victim of a crime and questioned. She reiterated her account of the events of 6 January 2000 and described the appearance of the alleged murderer.
14. In the Government’s submission, on 27 February 2000 the investigation authorities also inspected the scene of the incident in the applicant’s presence. The Government did not produce any report on that inspection.
15. On 23 April 2000 the proceedings in case no. 12005 were suspended for failure to establish the identity of the alleged perpetrator. The applicant was informed in writing that the proceedings had been adjourned on 27 [rather than 23] April 2000.
16. On 7 June 2000 the criminal proceedings were reopened. According to the Government, on the same date, upon the applicant’s request of 31 May 2000, the investigator in charge ordered the exhumation of the corpses of those killed on 6 January 2000, including the applicant’s husband. The exhumation and forensic examination were carried out on the next day.
17. On 7 July 2000 the investigation was stayed as it was impossible to establish those responsible. It does not appear that there was any investigative activity between 7 July 2000 and 10 December 2001.
18. On the latter date the decision of 7 July 2000 was set aside and the proceedings in criminal case no. 12005 were resumed, the applicant being notified in a letter of 12 December 2001.
19. On 14 January 2002 the investigation into the killing of the applicant’s husband was again suspended in the absence of information concerning those responsible. It appears that the applicant was not informed of that decision until 14 October 2002, when the Grozny prosecutor’s office stated in their letter that the criminal proceedings instituted on 27 February 2000 in connection with the killing of the applicant’s husband had been suspended on 14 January 2002 for failure to find the alleged perpetrators, and that the search for those responsible was under way.
20. In a letter of 13 May 2002 the Department of the Ministry of the Interior for the Southern Federal Circuit notified the applicant that the investigation in connection with her husband’s murder had been commenced on 17 [rather than 27] February 2000, that the case had been given the number 12005 and that the suspect in the case, Ismailov Kh. S., had been an officer of the Ministry of the Shariat State Security [a security service established when the former President of Chechnya, Aslan Maskhadov, had been in power]. The letter stated that the suspect was presently on the federal wanted list.
21. It does not appear that any investigative activity took place between 14 January 2002 and 21 April 2005.
22. On the latter date the criminal proceedings in case no. 12005 were re-opened. The applicant was informed of this decision on the same date.
23. On 22 May 2005 the investigating authorities stayed the criminal proceedings on account of their inability to establish the alleged perpetrator and apprised the applicant of their decision on the same date.
24. It does not appear that any investigative activity took place between 22 May 2005 and 8 December 2006.
25. On the latter date the investigation was resumed. The investigating authorities informed the applicant of that decision in a letter of 8 December 2006. According to the Government, the conduct of the investigation was being supervised by the Prosecutor General’s Office.
26. In the Government’s submission, apart from the applicant, the investigating authorities also questioned seven witnesses. One of them, the applicant’s neighbour who had helped her to bury the bodies, gave oral evidence similar to the applicant’s account, whereas the others did not provide any relevant information. According to the Government, the investigating authorities also sent a number of queries to “competent bodies”. In particular, such queries were sent on 28 February, 17 April and 11 July 2000, 10 January 2002 and 4 May 2005.
27. The Government also submitted that the investigation had obtained information that the murder of the applicant’s husband and other victims had been committed by Khalid (Khazir) Ismailov, who had been an officer of a security service established when the former President of Chechnya, Aslan Maskhadov, had been in power. During the investigation, an address of Khalid’s acquaintance had been established, but the house at that address had proved to be deserted. The investigators also verified the possible involvement of a number of persons with the surname “Ismailov” in the killing of 6 January 2000, but that had brought no positive result.
28. On 20 July 2001 the applicant issued civil proceedings against a number of Federal Ministries before the Leninskiy District Court of Stavropol (“the District Court”). In her written submissions to the court the applicant sought damages in respect of her husband’s death. She also stated that the block of flats in which she lived had been destroyed by a missile and asked the court to award her compensation for the destroyed flat and belongings that had been in the flat. As can be ascertained from a copy of her written submissions, the applicant enclosed copies of her passport, the marriage certificate, the death certificate, the housing warrant, a letter from a local authority, and certificates from the housing authority.
29. By a default judgment of 3 December 2001 the District Court allowed in part the applicant’s compensation claim for her husband’s death and awarded her 20,000 Russian roubles (RUB).
30. As regards the applicant’s compensation claim concerning the destruction of her property, the court noted that under Article 1069 of the Civil Code of Russia the State was liable only for damages caused by its agents’ actions which were unlawful. It further found that the actions of the Russian federal troops in Chechnya had been lawful, as the military operation in Chechnya had been launched under Presidential Decree no. 2166 of 30 November 1994 and Governmental Decree no. 1360 of 9 December 1994, both of which had been found to be constitutional by the Constitutional Court of Russia on 31 July 1995.
31. The court further stated that the applicant had submitted no evidence proving a causal link between the defendants’ actions and the damage sustained by her, since the military actions had been carried out by both parties to the conflict. Therefore the destruction of the applicant’s possessions could not be imputed to the defendants.
32. The court further held that under Article 1079 of the Civil Code of Russia damage inflicted by a “source of increased danger” (источник повышенной опасности) was to be compensated for by the person or entity using that source, unless it was proven that the damage had been caused by force majeure or through the fault of the affected person. However, in the court’s view, the applicant’s reference to the above Article was unfounded, as weapons and military equipment, in the circumstances of the present case, could not be regarded as a “source of increased danger”, since they had been used strictly for the purposes they were designed for and under the firm control of the relevant personnel. Moreover, the applicant had not adduced any evidence which would enable the court to establish the type and ownership of the weapon which had destroyed the applicant’s housing.
33. The court also noted that the applicant had submitted no documents confirming the value of her lost property. It noted in this respect that witness statements obtained during the hearing only enabled it to establish the existence of the possessions in the applicant’s flat prior to the destruction and the fact that those possessions had been new. The court made no findings regarding the applicant’s property rights in respect of the destroyed flat.
34. The applicant’s claims for compensation for non-pecuniary damage could not be granted either, in the absence of any fault or unlawful actions on the part of the defendants. In view of the above, the court concluded that there were no grounds for granting the first applicant’s compensation claim for the destroyed property.
35. It does not appear that the applicant ever sought the first-instance court’s assistance in obtaining evidence relating to the weapon that had destroyed her housing. In her appeal against the judgment of 3 December 2001 the applicant did not complain of her inability to obtain the evidence in question.
36. On 30 January 2002 the Stavropol Regional Court upheld the first-instance judgment on appeal.
37. On 30 January 2002, following the decision of the Stavropol Regional Court, the judgment of 3 December 2001 became final and binding.
38. According to the applicant, at some point the District Court issued a writ of execution and sent it to the Ministry of Finance for execution on 30 April 2002.
39. In the Government’s submission, the writ of execution was received by the Ministry of Finance on 24 November 2004.
40. On 16 March 2006 the Ministry of Finance sent the applicant a letter inviting her to indicate the details of her bank account to enable the said Ministry to transfer the judgment debt to her.
41. The applicant provided the necessary information on 5 May 2006.
42. On 30 October 2006 the full amount due pursuant to the judgment of 3 December 2001 was transferred to the applicant’s bank account.
43. In October 2006, at the communication stage, the Government were invited to produce a copy of the investigation file of case no. 12005 instituted in connection with the killing of the applicant’s husband and other persons on 6 January 2000. Relying on the information obtained from the Prosecutor General’s Office, the Government refused to submit a copy of the entire file, stating that the disclosure of the documents would be in violation of Article 161 of the Russian Code of Criminal Procedure since the file contained personal data concerning the witnesses. They, however, produced a number of documents from the file, which can be summarised as follows.
44. By decisions of 27 February 2000 the Grozny prosecutor ordered that criminal proceedings be instituted in connection with the killing of the applicant’s husband and three other persons by a man named Khalid using a machine gun on 6 January 2000 and that an investigative group be organised for the investigation.
45. By a decision of 27 February 2000 the investigator in charge declared the applicant the victim of a crime.
46. By a decision of 15 March 2000 an investigator of the Grozny prosecutor’s office took up the case.
47. By a decision of 23 April 2000 the investigator in charge suspended the proceedings in case no. 21005. The decision stated that the term established for the preliminary investigation had expired, that all possible investigative actions had been carried out, but that it was impossible to establish the identity of the alleged perpetrator. The decision did not list the actions that had been taken during the investigation.
48. In a letter of 23 or 28 [the hand-written date is unclear] April 2000 the applicant was informed that the investigation in case no. 12005 had been stayed, as it was impossible to establish the identity of the person responsible.
49. On 7 June 2000 the Grozny prosecutor ordered that the investigation be resumed, citing “the necessity of carrying out investigative actions”. He did not indicate which particular actions should be taken. By a decision of the same date an investigator of the Grozny prosecutor’s office took up the case.
50. A decision of 10 December 2001 of the first deputy prosecutor of Grozny ordered that the investigation in criminal case no. 12005 be resumed. It stated, in particular, that “...the investigation ... [had been] extremely superficial and was limited to carrying out several investigative actions and to including in the materials of the case file reports of investigating officers on the performed work and the results”. It went on to say that the decision of 7 July 2000 by which the investigation had been suspended for failure to establish the alleged perpetrator had been premature, before all investigative steps had been taken, and should be quashed. The decision of 10 December 2001 further listed a number of investigative steps that should be taken during an additional investigation.
51. In a letter of 12 December 2001 the Grozny prosecutor’s office informed the applicant in reply to her query that the criminal proceedings had been suspended on 7 July 2001 [apparently a misprint, the correct date is 2000] in the absence of any persons identifiable as the perpetrators. The letter went on to say that a study of the case file had shown the preliminary investigation into the circumstances of the death of the applicant’s husband to have been superficial, and that the proceedings had therefore been resumed on 10 December 2001 and the investigator in charge had been instructed to carry out an additional investigation.
52. By decisions of 14 December 2001 an investigator of the Grozny prosecutor’s office took up case no. 12005 and requested that 14 January 2002 be fixed as the term of the preliminary investigation.
53. On 14 January 2002 the investigator in charge ordered that the proceedings be stayed, as “during the additional investigation it [had been] impossible to establish those responsible”. The decision did not specify whether any investigative steps had been taken, or if so, what they were.
54. By a decision of 21 April 2005 a deputy prosecutor of the Zavodskoy District prosecutor’s office set aside the decision of 14 January 2002 and ordered that the investigation in case no. 12005 be reopened. The decision stated that “the investigation [had been] carried out superficially, haphazardly and unprofessionally” and that “the decision [of 14 January 2002] suspending the preliminary investigation [had been] premature and unfounded, without all the circumstances of the serious crime committed having been studied”. The prosecutor thus ordered that the decision of 14 January 2002 be set aside, given, in particular, the fact that the prosecutor’s instructions of 10 December 2001 had not been complied with. The decision did not list any particular investigative actions to be performed.
55. On 22 April 2005 an investigator of the Zavodskoy District prosecutor’s office took up the case, and on the same date informed the applicant of the reopening of the investigation.
56. By a decision of 22 May 2005 the investigator in charge stayed the investigation on account of the failure to establish the alleged perpetrator. The decision stated that during the additional investigation a query had been sent to the Ministry of the Interior of the Chechen Republic with a view to establishing the alleged perpetrator’s whereabouts, and that, upon receipt of a reply to that query, a request was sent to the Shali district prosecutor’s office with a view to organising interviews with persons having personal details similar to those of the alleged perpetrator. The decision did not indicate whether any other steps had been taken. A letter of the same date informed the applicant of this decision.
57. By a decision of 8 December 2006 a deputy prosecutor of the Zavodskoy district prosecutor’s office ordered that the decision of 22 May 2005 be set aside and the proceedings in case no. 12005 reopened. The decision stated, in particular, that the decision to suspend the investigation had been unfounded and that the investigator in charge had failed to take all measures which could be taken in the absence of a person identifiable as a perpetrator. The decision further listed investigative measures that should be taken during an additional investigation. On the same date an investigator of the Zavodskoy district prosecutor’s office took up the case and informed the applicant of the reopening of the proceedings.
58. A report on the exhumation dated 8 June 2000 contains a detailed description of the site of the burial and the exhumed bodies.
59. In June 2000 (the date is unclear) forensic medical experts drew up reports on the results of the examination. The report drawn up in respect of the body of the applicant’s husband attested the presence of gunshot wounds to the head and neck.
60. On 19 June 2000 the investigator in charge sent a query to the Prosecutor General’s Office in an attempt to find out whether any criminal proceedings had ever been brought against Khazir (Khamed) Ismailov, aged 43, who had been an officer of the security services established by rebel fighters, and if so, to obtain his full personal details and photographs, or in the absence of photographs to have people who might have known him questioned.
61. During an interview of 27 February 2000 the applicant re-stated the circumstances of the incident of 6 January 2000. She described in detail the appearance of Khalid, the man who, according to her, had shot her husband and three other persons. She stated that he was of Chechen origin and, since December 1999, had shared a flat in their block of flats with another man of Chechen origin, who had been their neighbour. Both of them had been armed with machine guns. She further stated that on the night of the incident Khalid had come down to their basement in a drunken state and shot her husband and three others with his machine gun. She had managed to hide in a dark corner of the basement. Immediately after the incident the applicant ran to a neighbouring block of flats where rebel fighters had been quartered and told them about the killing. According to her, they had taken Khalid out of the basement and started beating him with the butts of their machine guns and had promised her that they would commit him for trial. On the following day, with the assistance of her two neighbours, the applicant had buried those killed near their block of flats. On the same day in the courtyard she had seen Khalid armed with a machine gun.
62. One of the neighbours who had helped the applicant with the burial stated in her witness interview of 27 February 2000 that she had learnt about the killing of the applicant’s husband and three others from the applicant. She gave oral evidence similar to that of the applicant and added that during the burial a man who had described himself as the former head of a security service established by rebel fighters had said that he knew Khalid and indicated the approximate vicinity of Khalid’s residence.
63. Transcripts of witness interviews held on 20 and 21 May 2005 reveal that the investigating authorities questioned three persons who were born in 1966, 1971 and 1983 and had the surname Ismailov and the first names of Khalid or Khazir. All of them stated that they had not been in Grozny during the period in question, did not know the man described by the applicant, and had no information regarding the incident of 6 January 2000.
64. Transcripts of witness interviews on 8 and 9 December 2006 reveal that the investigating authorities questioned six persons, apparently the applicant’s neighbours. They all stated that they did not know, and had no information about, the man described by the investigators.
65. The Government also adduced the transcript of a hearing held by the Leninskiy District Court of Stavropol on 3 December 2001. According to this document, both the applicant and her legal counsel, Mr V. Tretyakov, attended the hearing. It is clear from this document that both parties to the proceedings received explanations in respect of their rights and obligations, in particular, those established by Article 50 of the Code of Civil Procedure (see paragraph 67 below). The transcript further reveals that the court heard both parties, the applicant having made statements similar to her written submissions to the court, and then four witnesses, who described the belongings that had been in the applicant’s flat prior to the destruction. The witnesses did not indicate the value of that property. As can be seen from the document, neither the applicant nor her representative had any questions, nor filed any motions. It is also clear that the court examined the following pieces of evidence: a copy of the marriage certificate, a copy of the passport, a housing warrant, a copy of the death certificate, an extract from a medical history card, two certificates, two letters, a copy of an identity document, parties’ written submissions, and summons.
66. Article 109 of the Code of Criminal Procedure of 1960 in force at the relevant time provided that the competent authorities were under an obligation to take a decision in respect of any written or oral complaint concerning a criminal offence within three days, or in exceptional cases ten days, from the date on which the complaint was received.
67. Article 50 of the Code of Civil Procedure of 1964 in force at the relevant time stated that each party to proceedings must prove those circumstances to which it refers in support of its submissions. A court decides what circumstances are relevant for the case and which party must prove them and proposes those circumstances for discussion even if some of them have not been referred to by any of the parties. Evidence is submitted by the parties and other persons involved in the proceedings. A court may propose that the parties or other persons involved in the proceedings submit additional evidence. If it is complicated for the parties or other persons involved in the proceedings to submit additional evidence, the court, on their request, assists them in obtaining that evidence.
68. Section 9 of the Law on Enforcement Proceedings of 21 July 1997 provides that a bailiff’s order on the institution of enforcement proceedings must fix a time-limit for the defendant’s voluntary compliance with a writ of execution. The time-limit may not exceed five days. The bailiff must also warn the defendant that coercive action will follow, should the defendant fail to comply with the time-limit.
69. Under Section 13, enforcement proceedings should be completed within two months following receipt of the writ of enforcement by the bailiff.
VIOLATED_ARTICLES: 2
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-77490
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF CZERWINSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1937 and lives in Brześć Kujawski, Poland.
5. On 29 January 1985 the applicant initiated before the Włocławek District Court (Sąd Rejonowy) civil proceeding concerning the division of his late parents’ estate. The estate consisted of two plots of land, 16 hectares in area, and one house.
6. Subsequently, the court held hearings and ordered expert opinions.
7. In 1993 the court held hearings in June and November. Subsequently, the court ordered expert opinions and in September 1994 it stayed the proceedings. Upon the applicant’s appeal the proceedings were resumed on 5 June 1995. The next hearing was held in July 1996 but subsequent hearings were held at more regular intervals.
8. Between September 1997 and March 1999 no hearings were held. During this period, the court ordered an expert opinion which was submitted in April 1998. A hearing scheduled for January 1999 was cancelled and took place in March 1999. Subsequently, the court ordered another expert opinion to be prepared and held the next hearing on 25 April 2000.
9. At least on two occasions, in 1996 and 2000, the presiding judge changed and the proceedings had to start from the beginning.
10. On 4 May 2000 the Włocławek District Court gave judgment. The court divided up the estate in question.
11. A party to the proceedings lodged an appeal against the judgment.
12. On 13 February 2001 the Włocławek Regional Court (Sąd Okręgowy) dismissed the appeal.
13. Articles 417 et seq. of the Civil Code (Kodeks cywilny) provide for the State’s liability in tort.
In the version applicable until 1 September 2004, Article 417 § 1, which lays down a general rule, read as follows:
“1. The State Treasury shall be liable for damage caused by a State official in the performance of the duties entrusted to him.”
14. Article 442 of the Civil Code sets out limitation periods in respect of various claims based on tort. That provision applies to situations covered by Article 417 of the Civil Code. Article 442, in so far as relevant, reads:
“1. A claim for compensation for damage caused by a tort shall lapse three years following the date on which the claimant learned of the damage and of the persons liable for it. However, the claim shall in any case lapse ten years following the date on which the event causing the damage occurred.”
15. On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings.
A more detailed rendition of the relevant domestic law provisions is set out in the Court’s judgment in Krasuski v. Poland, no. 61444/00, §§ 3446, ECHR 2005–... (extracts) and in Charzyński v. Poland (dec.), no. 15212/03, §§1223, ECHR 2005....
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-98531
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF OZEROV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Anatoly Kovler;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: 6. The applicant was born in 1969 and lives in Moscow.
7. In 1999 criminal proceedings were brought against the applicant on two charges a traffic offence in June 1999 which resulted in infliction of bodily harm, and a burglary in August 1999.
8. On 6 October 1999 the Moscow prosecutor's office transferred the case for trial to the Moscow Savelovskiy District Court and asked to be notified of the hearing and examine the case with a prosecutor's participation.
9. On 12 October 1999 Judge F. of the Moscow Savelovskiy District Court ordered that the applicant's case be examined on 26 October 1999 at a public hearing with the participation of a state prosecutor and defence counsel.
10. On 25 November 1999 the Savelovskiy District Court composed of Judge F. and two people's assessors held an open hearing. The applicant, his counsel and the victims appeared before the court. The prosecutor failed to appear, for unknown reasons.
11. According to the court records, the court asked whether the participants in the proceedings had any requests. There were none. The court then asked whether it was possible to begin the court investigation with those present. The participants in the proceedings responded in the affirmative and the court, having deliberated, decided to do so.
12. The indictment was read out in court. The applicant was accused under Article 264 § 1 of the Criminal Code of a violation of traffic rules which caused bodily harm and, under Article 158 § 2 of the Code, of concerted burglary by a group of people causing significant damage.
13. The applicant was asked if he understood the charges against him and whether he pleaded guilty. He answered that he understood the charges, that he pleaded guilty to the traffic offence and not guilty to burglary. The participants in the proceedings were then asked about the order of examination of evidence. They left that question to the court's discretion and the court decided first to hear the applicant, then the victims, and then to examine written evidence and the statements by witness Mr L. It then proceeded with the examination of evidence in that order.
14. Having deliberated, the court of its own motion decided to examine, as an additional witness, a police officer, Mr Y., who had arrested the applicant at the site of the crime. It announced a forty-minute break, after which Mr Y. appeared before the court and was examined. Mr Y. stated that he had arrived at the scene of the burglary in a police patrol car with other police officers. He had seen a man and tried to pursue him but he had run away. They had found a car which was open and some time later he had caught the applicant, who was approaching the car and who looked similar to the man he had been pursuing earlier. The applicant had denied any connection with the burglary and stated that he had been visiting friends but could not give his friends' names or address.
15. The court then asked whether it was possible to conclude the court investigation with those present. The participants in the proceedings responded in the affirmative and the court proceeded to pleadings. In particular, it heard the applicant's counsel.
16. On 26 November 1999 the Savelovskiy District Court delivered a judgment in which it convicted the applicant under Article 264 § 1 of the Criminal Code of a violation of traffic rules which caused bodily harm and under Article 158 § 2 of the Criminal Code of concerted burglary by a group of people causing significant damage, and sentenced him to three and a half years' imprisonment and a fine.
17. The applicant's conviction on the charge of burglary was based on the statements of the victim Mr V.; witness Mr L., a security guard who said he had seen three people get out of a car, one of whom had stayed in the yard while the other two had approached the building with an object resembling a crowbar. Mr L. had heard the sounds of scraping metal and called the police. The conviction was further based on statements by witness Mr Y.; a report on the examination of stolen property which was found by the police at the site of the crime and identified by the victim and a report on the examination of a crowbar which was also found at the site of the crime. The court found that the applicant took the other accomplices to the site of the crime in his car, made his car available to transport the stolen property, and kept watch while the others were forcing a window grille. The District Court declared certain written evidence inadmissible as unlawfully obtained.
18. The applicant's counsel appealed against the judgment, arguing that there was no evidence that the applicant had committed the burglary. He also pointed out that the case file did not contain information about the prosecutor's notification of the hearing and reasons for his nonattendance. The first-instance court had held the trial in the absence of the prosecution, thus assuming its functions. In accusing the applicant and delivering the judgment at the same time, as with inquisitorial justice, it had violated the constitutional principles of impartiality of court, equality of parties and adversarial proceedings.
19. On 27 January 2000 the Moscow City Court held an open hearing. It heard submissions by the applicant's counsel and by the prosecutor, who argued that the judgment should be upheld. It dismissed the appeal and upheld the judgment.
20. The City Court stated in its decision that it could not agree with the applicant's allegation that he had not participated in the burglary, because the allegation was rebutted by the materials of the case. The City Court held that there had not been any substantial violations of the law on criminal procedure which would warrant the quashing of the judgment. The City Court made no comment in its decision in respect of the applicant's complaint about the prosecutor's absence from the hearing before the firstinstance court.
21. On 19 October 2000 the Presidium of the Moscow City Court examined the applicant's case by way of supervisory review, changed the qualification from burglary to aiding and abetting burglary under Article 33 § 5 and Article 158 § 2 and reduced the sentence to two years and three months' imprisonment and a fine.
22. On an unspecified date the applicant was discharged from serving his sentence on the basis of an amnesty act and released.
23. Article 20 of the RSFSR Code of Criminal Procedure of 1960 (“the Code”), in force at the material time, required the court to undertake all lawful measures for the comprehensive, thorough and objective examination of all the circumstances of a case, and to detect incriminating and exonerating as well as both mitigating and aggravating circumstances.
24. Under Article 228 of the Code, during the preparation of a case for a trial a judge had to decide whether a state prosecutor should participate in the trial. If the judge decided that the prosecutor's participation was necessary his decision was binding on the prosecutor. If the prosecutor informed the court when transferring a case for trial of his wish to sustain the charges in the court the judge could not decide otherwise.
25. Under Articles 251 and 277 of the Code, if the prosecutor failed to appear, the court, after hearing participants present at the hearing, decided whether it was possible to examine the case in his absence or whether the hearing should be adjourned. That decision was not appealable to a higher court (Article 331 of the Code).
26. At the trial the prosecutor prosecuted the defendant on behalf of the State, took part in the examination of evidence, and gave conclusions and submissions, in particular in respect of the law and punishment to be applied to the defendant. If the prosecutor was convinced that the materials of the judicial investigation no longer supported the charges levelled against the defendant, he had to drop the charges and state his reasons for doing so to the court (Article 248 of the Code).
27. The Constitutional Court of Russia on several occasions examined the question of compatibility of functions imposed on the court according to the RSFSR Code of Criminal Procedure with, in particular, the court's role in administering justice independently and impartially (Article 120 of the Constitution) and the adversarial nature of criminal trial (Article 123 § 3 of the Constitution). The Constitutional Court found the following functions imposed on the judge incompatible with those principles: to institute criminal proceedings and formulate charges under Article 418 of the Code (a decision of 28 November 1996); to institute criminal proceedings, in particular against a new person, and to apply a preventive measure against that person under Articles 3, 108 § 1 (vi), 109 §§ 1, 2 and 3 (i), 112 and 115, 232 § 1 (iv) and 256 §§ 1, 2 and 4 (a decision of 14 January 2000); to sustain charges after the prosecutor's dropping the charges under Article 248 § 4 of the Code (a decision of 20 April 1999); and to remit, of its own motion, a criminal case to the prosecutor for additional investigation in case of irreparable incompleteness of investigation, in particular if evidence was found to have been received illegally, or in the case of grounds for laying more serious charges or new charges against the defendant under Articles 232 §§ 1 (i) and (iii) and 258 § 1 of the Code (the decision of 20 April 1999 and a ruling of 3 February 2000).
The Constitutional Court held that functions concerning formulation and sustaining the charges before the court should be performed by the prosecution and should not be imposed on the court. In particular, it stated in its decision of 20 April 1999 that a criminal trial was based on the principles of adversarial proceedings and equality of the parties, which meant first of all strict separation of the judicial function and the prosecution function, which were therefore carried out by different actors. The adversarial nature of criminal trials implied that the institution of criminal prosecution, the formulation of a charge and its sustaining before the court, were insured by competent bodies and officials, as well as victims. Imposing on the court the obligation to substitute, in one or another form, for those bodies and persons' prosecution activity, was incompatible with Article 123 § 3 of the Constitution and obstructed the independent and impartial administration of justice by the court as required by Article 120 § 1 of the Constitution, as well as Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 14 of the International Covenant on Civil and Political Rights.
28. Under Article 278 § 1 of the Code, the court investigation started with the reading out of an indictment. The Constitutional Court held that there was no indication under the Code that the indictment was to be read out by the court. Therefore, it did not follow from that provision that the court had to assume any functions concerning levelling, sustaining or proving charges against the defendant which would be incompatible with its constitutional function to administer justice on the basis of the principles of adversarial proceedings and equality of the parties. In particular, the prosecutor could not refuse to read out the indictment if ordered to do so by the presiding judge (a ruling of 21 December 2000).
29. Under the 1960 Code, the prosecutor's participation was compulsory in jury trials (Article 428).
30. The appeal court considered, on the basis of the materials in the case file and newly submitted materials, whether a first-instance judgment was lawful and well-founded. It was not bound by the grounds of the appeal and exercised a full review of the case (Article 332 of the Code). Under Articles 339-341 of the Code, the appeal court could decide to dismiss the appeal and uphold the judgment, to quash the judgment and remit the case for a new investigation or for a fresh trial, to terminate the criminal proceedings or to vary the judgment.
31. Article 342 of the Code read as follows:
Grounds for quashing or varying judgments [on appeal]
“The grounds for quashing or varying a judgment on appeal shall be as follows:
(i) prejudicial or incomplete inquest, investigation or court examination;
(ii) inconsistency between the facts of the case and the conclusions reached by the court;
(iii) a grave violation of procedural law;
(iv) improper application of [substantive] law;
(v) discrepancy between the sentence and the seriousness of the offence or the convicted person's personality.”
32. Under Article 246 of the new Code of Criminal Procedure of 2001, which entered into force in 2002, the state prosecutor's participation is mandatory in all trials in public prosecution cases.
33. Recommendation to Member States on the role of public prosecution in the criminal justice system (Recommendation Rec(2000)19) adopted by the Committee of Ministers of the Council of Europe on 6 October 2000 (during the 724th session of the Ministers' Deputies) notes that the public prosecution's functions in all European criminal justice systems includes the decision on whether to lay charges or to abandon prosecution, the prosecution of these charges before the courts and the possibility to appeal all or certain courts' decisions. In certain criminal systems, the public prosecution also conducts, manages or supervises the investigation, provides support and legal assistance to the victims or decides on alternative measures to prosecution (§§ 2 and 3). As to the relationship between state prosecutors and court judges, the recommendation provides as follows:
“17. States should take appropriate measures to ensure that the legal status, the competencies and the procedural role of state prosecutors are established by law in a way that there can be no legitimate doubt about the independence and impartiality of the court judges. In particular states should guarantee that a person cannot at the same time perform duties as a state prosecutor and as a court judge.”
34. The United Nations adopted certain Guidelines on the Role of Prosecutors (1990) at the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders (Havana, Cuba, 27 August to 7 September 1990). Guideline 10 on roles in criminal proceedings states “the office of prosecutors shall be strictly separated from judicial functions.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1